Sylvanus Emeka Madubuike & Ors. V. Romanus Elochukwu Madubuike & Ors (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

The only issue for determination in this appeal is as follows:-

“Whether upon a proper and adequate evaluation of the oral, affidavit and documentary evidence before the court, the learned trial Judge was right in his decision refusing to set-aside his order of substituted service of the writ of summons and other processes in this suit and the substituted service of the said processes on the defendants/appellants”.

The respondents before us were the plaintiffs at the lower court. The appellants were the defendants. The reliefs claimed by the respondents against the appellants are contained in paragraph 12 of the former statement of claim. This is contained at p.1-3 of the print record. By an ex-parte application, the respondents on 3rd November, 1994 obtained an order from the court to serve the appellants the writ of summons and other processes in the suit by substituted means. The said processes were to be pasted on the entrance door or gate of the premises occupied by appellants. The premises were situated at Iruowelle village, Awka-Etiti in Idemili Local Government Area of Anambra State.

In their application dated 30th November, 1994, the appellants prayed the court to set aside the order for substituted service primarily because appellants were resident in Lagos and should have been served the writ. A 20 paragraph affidavit accompanied appellant’s application which the respondents opposed. In order to resolve the conflict pertaining the last known place of abode of the appellants in the affidavits of the opposing sides, the lower court took viva voce evidence. In a well considered ruling dated 12th April, 1995, appellant’s application was refused. The court refused to set aside the order for substituted service of the writ of summons effected in accordance with the order previously enjoyed by the respondents.

The issue for determination reproduced supra is a manifestation of their appeal filed by the appellants and distilled from the grounds of appeal. Parties filed briefs and adopted same as argument for the appeal.

Learned counsel for the appellants J. U. Obiora Esq. has argued in their brief what the aim of service is. Whether personal or substituted, the aim is to bring to the knowledge of the party served the reliefs sought against him as well as provide the party the opportunity of contesting the claim if desired. Failure to effect service on the party, as in the instant case, was fundamental defect in the competence of the court to even proceed. Learned counsel cited and relied on the following:- United Nigeria Press Limited and Anor. v. Timothy Odo Adebayo (1969) 1 All NLR 431 at 432; National Bank of Nigeria Limited v. Guthrie Nigeria Limited and Anor. (1993) 3 NWLR (pt.284) 643 at 659 and Mbadinuju v. Ezuka and Ors. (1994) 8 NWLR (pt.364) 535, 556.

It is appellant’s contention that at the time action was instituted against them, and all times material to the suit, appellants were resident at No.11 Betty Pride Way, Ajao Estate, Lagos. Appellants had adduced both oral and affidavit evidence in proof of their place of abode. In particular there were Exh. D1 and Exhs. D2, D3, D5 and D6. Exh. D1 is the rent receipt in respect of appellant’s residence at No.11, Betty Pride Way, Ajao Estate Lagos for the period between June, 1992 and May, 1995. Exh. D2 – D6 are receipts for payment of school fees in respect of 3rd – 8th appellants and for the period between 18/6/92 and 9/5/94. These Exhibits were not controverted by the respondents either orally or by affidavit evidence. The most reasonable conclusion to draw which the court refused to, was that appellants were resident in Lagos. There, in particular, 3rd to 8th appellants attended school. Appellants could not have resided in both places at one and the same time as such was not within the natural course of human events. There was the added oral evidence of the three witnesses appellants called in further proof of the place of their abode which the court also ignored. Appellants further argue that the issue of service is so fundamental and the court’s refusal to set-aside its order of substituted service of all its processes constituted a breach of S.33 (1) of the 1979 Constitution.

The effect of this breach is that all proceedings consequent upon the purported service on the appellants are illegal, null, void and of no effect. Learned appellant’s counsel referred to amongst others the following authorities to buttress his point: Julius Berger Nigeria Limited v. Friday Femi (1993) 5 NWLR (Pt.295) 612 at 621; Bell Obi Nwabueze and Anor v. Justice Obi Okoye (1988) 4 NWLR (Pt.91) 664 at 684. Chief Oyeleke Balogun and Ors v. Oladosu Akanji and Anor. (1988) 1 NWLR (pt.70) 301 at 320 and Laws of England 3rd Edition Vol. 30 page 346 paragraph 636.

Appellants argue also that the court’s undue reliance on Exhs. A, A1 and exhibited to the respondent’s affidavit led the court to the perverse decision it made in respect of appellant’s place of abode. Exhibit A, a letter from the Assistant Inspector General of Police Benin City to the Commissioner of Police Awka only contained the former’s impression and suggestion about where the 1st appellant resided and was no match to 1st appellant’s uncontradicted evidence at p.82 of the print record. Exh. A1 a copy of the writ of summons and claim in suit No.0/49/95 instituted by appellants against 1st respondent, was relied upon by the Judge in complete misapprehension of what the document contained. The same wrongful consideration was given by the court to Exhibit B, particulars of Directors, form C.07, in respect of the 2nd respondent’s Shyromric International Company Limited. If the address indicated in Exh. B No. 25, Ozubulu Street, Onitsha was the address to which the court processes were delivered, the confusion which the order occasioned can then better be imagined. In all, appellants finally submit that the findings and conclusions of a court of law which did not naturally flow from the evidence before the court invariably leads to a perverse decision and in the instant appeal the order it made for substituted service. The appeal, drawing from United Nigeria Press Limited and Anor. v. Timothy Obi Adebanjo (1969) 1 All NLR431; Sken Consult (Nig.) Ltd. and Anor v. Goddy Ukey (1981) 1 SC6 at 26 and Odutola v. Kayode (1994) 2 NWLR (Pt.324) 1, should be allowed.

I prefer the issue formulated by the respondents for its simplicity and direct applicability to the real issue raised by the appeal. It equally subsumes the one formulated by the appellants. It reads thus:-

“Whether on the evidence before him as evaluated the learned trial Judge was right in his decision of 12/4/95 refusing to set-aside the order made by him on substituted service”.

Learned respondent’s counsel argue in their brief that the basis of the lower court’s refusal to set aside its order of substituted service of the writ and subsequent court processes are contained at paragraph 2 of the print record. It is clear from the finding that the trial Judge had fully considered and properly evaluated the evidence before it. The rigorous exercise determined whose case the court accepted. The evidence of DW1 which the court preferred remained unshaken. Counsel submits that where the court of appeal did not see, hear or observe witnesses and their demeanor, it should be reluctant to interfere with a decision of a trial court founded on facts that are not shown to be unreasonable or perverse. Counsel rely on Ivienagbor v. Bazuaye and Anor (1993) 1 NWLR (pt.271) 598 at 606; Kuma v. Kuma (1936) 5 WACA 4; Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1 and Atolagbe v. Shorun (1985) 1 NWLR (pt.2) 360.

Respondents conceded that the purpose of service of whatever type is to bring the notice of proceedings to defendant. Where it is abundantly shown that a defendant such as the appellants had notice of the writ of summons and the other court processes pasted on their entrance gate, the court would be right to maintain an order of substituted service so made. Counsel refers to order 10 rule 5 of the Anambra State High Court (Civil Procedure) Rules to further make his point.