Fundamental Nature of Service #
It is trite that the object of service, is to give notice to the Defendant so that he may be aware of and be able to defend if he may that which is sought against him. It is settled law that failure to serve Defendant is a fundamental vice as service of a Writ of Summons is a condition precedent for the exercise of the Court’s jurisdiction over the subject-matter of the action and over the Defendant. See Madukolu V. Nkemdilim (1962) 1 ALL NLR 587 at 598; Sken Consult (Nig.) Ltd. V. Ukey (1981) 1 S.C. 6; Okafor V. Igbo (1991) 8 NWLR (pt. 210) 476. It is not enough that the Defendant knows or is informed that a Suit has been pending against him. The fact that he is aware that he has been sued in Court does not dispense with the need to serve him with the originating process – ONONYE V. CHUKWUMA (2005) 17 NWLR (Pt. 953) 90 at 119 paras. A – C.
Effect of Failure to Serve Process When Required #
Service is a jurisdictional matter. In the case of Okoye vs Centre Point Merchant Bank Ltd, Tobi JSC emphasized the fundamental nature of service of originating process and the effect of non-compliance with the provisions of the Rules of Court regarding service. Non service of writ of summons is not a mere defect in procedure. It is also not one of want of form but rather an incurable irregularity that is intrinsic to the jurisdiction of the Court. It is beyond doing technical justice. It goes to the doing of substantial justice.
Some ratios on the point are –
NUT TARABA STATE & ORS v. HABU & ORS (2018) LPELR-44057(SC)
“As, demonstrably, shown in the leading judgment, the first and sixth appellants (as respondents) were not notified of the hearing of the appeal on November 25, 2004. The Lower Court, in my view, erred in this regard. The law has long been settled that where service of processes is not effected on a party, who is supposed to be served, before an appeal is heard, such proceedings would have been afflicted with a fundamental vice and this Court is entitled, ex debito justitiae, to have the proceedings set aside, Eke v Ogbonda (2007) All FWLR (Pt.351) 1456, 1452. This must be so for the entire proceedings would have been vitiated. It would be immaterial that they were well-conducted, Habib Nig Bank Ltd v Opomulero and Ors [2000] 15 NWLR (Pt.690) 315; Skenconsult Nig Ltd v Ukey [1981] 1 SC 6; Mbadinuju and Ors v Ezuka and Ors [1994] 10 SCNJ 109; [1994] 8 NWLR (Pt.364) 535; Folorunsho v. Shaloub [1994] 3 NWLR (Pt.333) 413. This prescription is premised on the radical nature of the right enshrined both in the common law principle of audi alteram partem, Omabuwa v. Owhofatsho [2006] 5 NWLR (Pt.972) 40, 67; Tubonemi v Dikibo (2006) 5 NWLR (Pt.974) 565, 587-588; AG Rivers State v. Ude (2006) 17 NWLR (Pt.1008) 436; Bamgboye v. UNILORIN (1999) 10 NWLR (Pt.622) 290; Deduwa v Okorodudu (1990) 9-10 SC 329 and Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Ukpo v Imoke (2009) 1 NWLR (Pt.1121) 90, 171; Salu v Egeibon (1994) 6 NWLR (Pt.348) 32; Ceekay Traders Ltd v G.M.C. Ltd (1992) 2 NWLR (Pt.222) 132.” Per CHIMA CENTUS NWEZE, JSC (Pp 16 – 18 Paras F – C).
OKEKE v. LAWAL & ORS (2018) LPELR-43920(SC)
“My Lords, from the issues which the parties put forward for the determination of the appeal at the Lower Court, namely: 1. Whether there was any service or proper service of the Writ of Summons and other Court processes on the appellants? 2. If the answer to issue No. 1 is in the negative whether the judgment of the lower High Court appealed against can be sustained? I entirely agree with the submission of the learned senior counsel for the respondent that the ratio decidendi of the Lower Court’s judgment was its finding and conclusion at page 115 of the record to wit “there is nothing on record to satisfy the Court that the first to fifth appellants/defendants were served with any process of the Court.” That was what it held to be fatal to the suit at the trial Court. In my humble view, the Lower Court was right. The rationale of all binding authorities is that the failure to serve a Court process, where the service of such a process is required, such as in this case, is a failure which goes to the roots of the case, Craig v. Kanssen (1943) KB 256 at 262. The explanation is simple. It is the service of the process of the Court on the defendant that confers on the Court the competence and the jurisdiction to adjudicate on the matter. In other words, due service of the process of the Court is a condition precedent to the hearing of the suit. Where, as in this case, as the first to the fifth respondents were not served with the originating process, that is, the Writ of Summons, they were entitled ex debito justitiae to have the trial Court’s judgment set aside as a nullity, Mbadinuju v. Ezuka [1994] 8 NWLR (Pt.364) 5. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. Since there was no service on them, the fundamental rule of natural justice audi alteram partem was breached when the trial Court proceeded to enter judgment against them, Mbadinuju v. Ezuka [1994] 8 NWLR (Pt.364) 5; Mark and Anor v Eke (2004) LPELR -1841 (SC) 25 -26; Skenconsult case (supra). In effect, the Lower Court was right in its verdict that the trial Court’s judgment, against the first to the fifth respondents, without service, was a judgment given without jurisdiction and is therefore null and void, Odutola v. Inspector Kayode [1994] 2 NWLR (Pt.324) 1, 15. In my humble view, that failure to serve the said originating process, the Writ of Summons, was not merely an irregularity. It was a fundamental defect which rendered the proceedings a nullity, Obimonure v. Erinosho [1966] 1 All NLR 250, 252; Scot-Emuakpor v. Ukavbe [1975] 12 SC 41, 47; [1975] 12 SC (Reprint) 31; Odita v. Okwudinma (1969) 1 All NLR 228; Skenconsult (Nig.) Ltd. v. Ukey [1981] 1 SC 6, 26; [1981] 1 SC (Reprint) 4. The Lower Court’s position is indeed unanswerable for as has long been recognised and held, failure to serve a process, where service of a process is required, renders any order made against the party who should have been served with the process null and void, Craig v. Kanseen (1943) 1 All ER 108, 113; Madukolu and Ors. v. Nkemdilim [1962] 2 SCNLR 341; S.G.B. (Nig.) Ltd. v. Aina [1999] 9 NWLR (Pt.619) 414; U.B.A. Plc. v. Ajileye [1999] 13 NWLR (Pt.633) 116, 125; Oke v. Aiyedun [1986] 2 NWLR (Pt.23) 548, 99; Okoye and Okoye v. CPMB Ltd (2008) LPELR 1 2505 (SC) 15. As indicated above, learned counsel for the appellant devoted paragraphs 3.1 – 3.73; pages 8 – 24 of the brief to an obiter dictum in the judgment of the Lower Court. That obiter dictum could be found at page 116 of the record. After its finding and conclusion at page 115 of the record that there “is nothing on record to satisfy the Court that the first to fifth appellants/defendants were ever served with any process of Court,” it concluded thus: From all I have said including the breach of the provisions of the Sheriff and Civil Process Act, no Court of law given the factual situation of this case can be said to be satisfied that service or processes of Court was effected on the defendant/appellants; and that is fatal to the suit, Ononye and Anor v. Mons. Chukwuma [2005] 17 NWLR (Pt.953) 90. [page 116 of the record] I entertain no doubt that the clause, commencing with the preposition “including,” namely, “including the breach of the provisions of the sheriff and Civil Process-Act…” was a mere obiter dictum. Now, as this Court explained in Omisore v Aregbesola and Ors [2015] 15 NWLR (Pt.1482) 205; (2015) LPELR – 24803 (SC) [per Nweze, JSC]: In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided, Paton and Sawyer , “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Rupert Cross, ”The Ratio” in 20 MLR 124-126; A, G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.1 Cal. LJ; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Nwana v. FCDA and Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe [1987] 2 NWLR (Pt.56) 341; Amobi v. Nzegwu [2013] 12 SCNJ 91. [An appeal]… is usually against the ratio decidendi and generally not against an obiter, U.T.C. Nigeria Limited v. Pamotei (1989) 2 NWLR (Pt.103) 244; Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387; Ede v. Omeke (1992) 5 NWLR (Pt.242) 428; Dakar v. Dapal [1998] 10 NWLR (Pt.577) 573; Abacha v. Fawehinmi (2000) 6 NWLR (Pt.571) 573. In the circumstance, I agree with the learned senior counsel for the respondent, George Oguntade, SAN, that it was “clearly improper for the appellant to have appealed against an obiter dictum which has no bearing whatsoever on the final decision of the Court,” [paragraph 3.20; page 10 of the respondent’s brief]. The net effect is that the appellant’s appeal is misconceived and deserves to be dismissed. It cannot be otherwise for jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, Attorney-General for Trinidad and Tobago v Erichie (1893) AC 518, 522; Timitimi v Amabebe 14 WACA 374; Mustapha v. Governor of Lagos State [1987] 2 NWLR (pt 58) 539; Utih v. Onoyivwe [1991] 1 NWLR (Pt.166) 206. In other words, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is, simply, a nullity, Jumang Shelim and Anor v. Fwendim Gobang [2009] 12 NWLR (Pt.1156) 435. That fate must therefore befall the judgment of the trial Court. It heard the case and delivered judgment when in the words of the Lower Court, there was “… nothing on record to satisfy the Court that the first to fifth appellants/defendants were ever served with any process of Court,” (page 115 of the record). This appeal is therefore dismissed for being devoid of merit. I further affirm the consequential orders of the Lower Court. Accordingly, this case is remitted to the trial Court for trial de novo before another judge after proper service has been effected.” Per CHIMA CENTUS NWEZE, JSC (Pp 12 – 18 Paras C – C)
Fundamental Nature of Hearing Notice #
FBN v. NAZIA & BROTHERS (NIG) LTD & ORS (2022) LPELR-58102(SC)
“Service of hearing notice to a party is one of the requisites of the jurisdiction of the Court. Where a party has not been served with hearing notice, one of the pillars of fair hearing, audi alteram partem -hear the other side, has been violently assaulted. The decision cannot stand.” Per HELEN MORONKEJI OGUNWUMIJU, JSC (Pp 28 – 28 Paras D – F)
Effect of Failure to Serve Hearing Notice #
ADALMA TANKERS BUNKERING SERVICES LTD & ANOR v. CBN & ORS (2022) LPELR-57036(SC)
“On the effect of failure to serve hearing notice, the Apex Court held in NUT TARABA STATE & ORS v. HABU & ORS (2018) LPELR – 44057 (SC) PER KEKERE-EKUN, J.S.C AT Pp. 15-16, thus: “…Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served to a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution, the consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void. See Obimonure Vs Erinosho (1966) 1 ANLR 250, Skenconsult (Nig) Ltd. Vs Sekondy Ukey (1981) 1 SC 6, Wema Bank Nig. Ltd Vs Odulaja (2000) FWLR (Pt. 17) 138 @ 142-143 A-C, A.C.B. Plc vs Losada Nig. & Anor. (1995) 7 SCNJ 158 @ 162. The proceedings and judgment of the lower Court are therefore null and void for breach of the 1st and 6th appellants’ right to fair hearing.” Per MARY UKAEGO PETER-ODILI, JSC (Pp 36 – 37 Paras F – E)
How to Challenge an Affidavit of Service /How to Assert Non-Service of a Court Process #
It is trite law that an affidavit of service sworn by the bailiff of Court is prima facie evidence of proof of the process on the person to have been served. However, the affidavit of service is merely a prima facie proof of service. It is not a conclusive proof of service that stands unimpeachable for all times and in all situations. Consequently, a Defendant who denies being served 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. – EMEKA V. OKOROAFOR & ORS. (2017) 11 NWLR (pt. 1577) 410 at 469, AMINU MAHMOUD & BROTHERS (NIG) LTD & ANOR v. UNITY BANK (2017) LPELR-45406(CA), MADUKA V UBAH (2014) LPELR-23966(CA), FRN V ATUCHE & ORS (2022) LPELR 58733 (CA) Pp 26 – 28 Paras C – E, APC v. AJONYE & ORS 2021) LPELR-54435(CA), AHMED V. AHMED & ORS (2013) LPELR-21143 (SC), 7-UP BOTTLING CO. PLC v. NEW NYANYA TRANSPORT CO. LTD & ORS (2021) LPELR-54434(CA) Pp 43 – 49 Paras A – A.
A review of the authorities on this point, would give the impression that what is strictly required is ‘Counter-affidavit to the bailiff’s affidavit of service’. In other words, a standalone counter-affidavit is required to contest or challenge the affidavit of service before the Court. For Emphasis or clarity see the few decisions quoted below –
KEEMTECH FARM LTD & ANOR V. UNITY BANK PLC (2022) LPELR-58107(CA) #
“Also, it is trite that where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of Court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing a counter affidavit to controvert the affidavit of service.”
INTL BANK FOR WEST AFRICA V. SASEGBON (2007) LPELR-8246(CA) #
“The issue of service of any process of the Court is established by affidavit evidence normally sworn to by the Court bailiff, and where this is done, the only way of rebutting it is by depositions in a counter affidavit.“
OGORDI & ORS v. EMORDI & ANOR (2021) LPELR-56757(CA)
“On how to challenge an affidavit of service, this Court in DIMASA PROPERTY LIMITED V. NURUDEEN ABIOYE YUSUF (2009) LPELR-8144 (CA) Per NWODO at page 20 paragraphs A-B held ”Once there is proof of service on a party by means of an affidavit of service deposed to by Bailiff of the Court, the only acceptable way to effectively challenge or rebut, the presumption of such service by the party concerned is by filing of a counter affidavit to controvert the affidavit of service.” Per MUSLIM SULE HASSAN, JCA (Pp 38 – 39 Paras E – A)
Fatokun v. Somade (2003) 1 NWLR (Pt.802) 431 at 447
“Where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of Court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing of a counter-affidavit to controvert the affidavit of service. The failure of the appellant to file such a counter-affidavit is fatal to his case and his oral argument on the hearing date that he was not served with motion and other processes in the suit can not avail him.”
See Also – ABDULMUMINU & ORS v. GTB (2017) LPELR-43140(CA), ZENON PETROLEUM & GAS LTD v. AGIDEE (2021) LPELR-55857(CA).
Some decisions have clarified this seeming confusion. Prominent among them is Maduka v Ubah (2014) LPELR-23966(CA) where the Court of Appeal per Uzo Ifeyinwa Ndukwe-Anyanwu stated inter-alia on the point that what is important is that there should be some kind of sworn deposition denying service. Whether it is an affidavit or a counter affidavit is immaterial.
Following Maduka v Ubah (Supra), the Court again in 7-UP BOTTLING CO. PLC v. NEW NYANYA TRANSPORT CO. LTD & ORS (2021) LPELR-54434(CA) elaborately clarified the position further in these words –
“It is required that a party denying the receipt of service of originating processes should file a counter affidavit challenging service, see AHMED V. AHMED & ORS (2013) LPELR-21143 (SC) where the apex Court held thus: “This is prima facie proof of the facts deposed to. There is no counter-affidavit or affidavit to controvert the affidavit of service. The 1st defendant/appellant simply says he was not served. 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 will not amount to a good denial. Such a 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 he was served he was not at home, or not in the country, (with proof of his whereabouts).” Per RHODES-VIVOUR, J.S.C. And the case of WEST AFRICAN OILFIELD SERVICE LTD V. GREGORY (2019) LPELR-4729(CA) where the Court held that: “The appellant’s learned counsel did not indicate (supra) that he needed time to file affidavit to challenge the bailiff’s affidavit of service. The bailiff’s affidavit therefore stood unchallenged as prima facie evidence of service of the processes in question on the appellant vide Order 6 Rule 27 of the Federal High Court (Civil Procedure) Rules 2009 (the rules of the Court below to the effect that in all cases where service of any writ or document has been effected by a bailiff or other officer of the Court below, an affidavit of service sworn to by the bailiff or other officer shall, on production, without proof of signature, be prima facie evidence of service. See the case of Emeka v. Okoroafor and Ors. (2017) 11 NWLR (pt. 1577) 410 at 469 where the Supreme Court held per the lead judgment prepared by his Lordship, Kekere-Ekun, J.S.C., following the cases of Schroder v. Major (1989) 2 NWLR (pt. 101) 3 at 11, Okoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (pt. 1110) 335, Estate of Late Chief H.I.S. Idisi v. Ecodril (Nig.) Ltd (2016) 12 NWLR (pt. 1527) 355 to the effect that an affidavit of service deposed to by the bailiff shall be prima facie proof of service and is protected by the presumption of regularity of official acts under Section 168(1) of the Evidence Act until challenged by affidavit denying service detailing specific facts showing non service and the Court determines whether or not the party complaining was indeed not served before the bailiff’s affidavit of service would yield ground. There was no such affidavit challenging the bailiff’s affidavit of service therefore the presumption that the appellant was served the originating process by prima facie evidence of the affidavit of service established that the appellant was indeed served the originating process. There is accordingly no substance in this complaint.” Per IKYEGH, J.C.A. The Respondents contended that the Appellant did not file a Counter affidavit challenging the service as shown in the affidavit of service. This Court in several decisions held that an affidavit in support of an application seeking to set aside a default judgment on the ground of improper service is good enough affidavit of challenge, see COSMOS MADUKA V DR. PATRICK IFEANYI UBAH & ORS (2015) 11 NWLR (Pt. 1470) 221 where the Court held thus: “What is important is that there should be some kind of sworn deposition denying service. Whether it is an affidavit or a counter affidavit is immaterial. I have no doubt that the learned trial judge in holding that only a counter affidavit will do in the circumstances was paying undue regard to technicality at the expense of substantial justice. I find quite preposterous in the circumstances the view of the learned trial judge that the affidavit of service remained unchallenged.” The same view was held by my learned brother, AGUBE, JCA in NWAUDO & ANOR V MBA & ANOR (2016) LPELR-40547 (CA) where he agreed that the most important issue in considering a challenge to an affidavit of service is a Counter affidavit denying service. The point made here is that the Counter affidavit must not be a stand alone counter affidavit. To counter the affidavit of service could be made in an affidavit seeking to set aside the service or default judgment. That in my view will meet the ends of justice and therefore discard with the technical view of saying such affidavit challenging service must come in a stand alone counter affidavit. I am also convinced that the trial Judge erred here when he held that there was no counter affidavit to the affidavit of service which was challenged by the affidavit in the application that led to this appeal (pages1-22 of the record of appeal). The position of law as espoused by the apex Court is that… See the case of MGBELENWELU V OLUMBA (2016) LPELR-4811(SC) which held thusly: “This is a case where the appellant is challenging the affidavit of service which was sworn to by the bailiff of the Court but did not get his clerk whom he maintained was served with the writ of summons to depose to a counter-affidavit. Service of an originating process is fundamental which goes to the root of the Court’s competence to entertain the case. lf an originating process is not served on a party, the entire proceedings are a nullity. See: Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult (Nig) Ltd v. Secondy Ukey (1981) 1 SC 6. Where there is a challenge to the service of an originating process, the affidavit of service deposed to by the Court Bailiff is prima facie evidence of such service. It is not conclusive proof but raises a rebuttable presumption which is discharged by credible evidence. A person challenging the service of the originating process on him must depose to a counter affidavit denying the service which must also contain credible facts to rebut the averments in the affidavit of service. In this particular instance the person who should provide the credible evidence is the clerk who received the service. See: Ahmed v Ahmed (2013) 15 NWLR {Pt. 1377) 274. The appellant did not provide the required evidence and so the learned trial Judge was right in not calling for oral evidence to resolve any conflicts in the affidavits deposed to by the Court Bailiff and that which was sworn to by the appellant himself. The lower Court was right in holding that the appellant’s right to fair hearing was not breached.” Per AKA’AHS, J.S.C.” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 43 – 49 Paras A – A).
How to Resolve Conflicts in Affidavit of Service? #
The next issue that arise is – once the affidavit of service is successfully controverted, what is the Court to do?
The Court is to solve such conflicts in affidavits by calling oral evidence. The Court is not expected to believe the bailiff’s affidavit of service above and above the affidavit denying service – AKINMOSIN v. MAKINDE & ANOR (2012) LPELR-19686(CA).
The need to call oral evidence arises only where the conflict in the affidavits are significant and material. it is not in all instances where conflict arise in affidavit evidence that a Court is bound to call oral evidence to resolve. In other words, calling for oral evidence to resolve conflict in affidavit evidence is not the first and only option out of the stalemate – Peters v Jackson (2002) FWLR (R. 113) 376 at 392; Bismillahi v. Yagba – East Local Government (2003) FWLR (Pt.141) 1939 at 1964; Eimskip Ltd. v. Exquisite Inds. (Nig.) Ltd (2003) FWLR (Pt.151) 1842 at 1866; Shell Trustees (Nig.) Ltd v. Iman & Sons Ltd (2000) 6 NWLR (Pt.662) 639; S.B.N. v. M.P.I. ENT. LTD (1997) 3 NWLR (Pt.492) 209 at 218.
The need to call oral evidence is obviated where the conflict is narrow in which case the Court is in a position to overlook same – ONWUBUYA & ORS. v. IKEGBUNAM (2019) LPELR-49373(SC).
Also the need to call oral evidence is obviated when there is documentary evidence from which the Court can settle conflicts in affidavits – EZECHUKWU & ANOR v. ONWUKA (2016) LPELR-26055(SC), ATUNGWU VS. OCHEKWU (2013) 14 NWLR (PT. 1375) 605 AT 641, PARAGRAPHS B – D. In NAGOGO VS. CONGRESS FOR PROGRESSIVE CHANGE (2013) 2 NWLR (PT. 1339) 448 AT 474, PARAGRAPH A – C.
See – EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738(SC)
