Alhaji Abdulazeez Danmusa V. Alhaji Hassan Barau (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the summary judgment entered in favour of the Respondent in the ruling of the Kaduna State High Court in Suit No KDH/KAD/34/2008 delivered by Honourable Justice Isa Aliyu on the 26th of May 2008. The Respondent, as plaintiff, commenced an action against the Appellant, as defendant, by a writ of summons dated the 14th of January, 2008 and which was issued by the Registry of the lower Court on the 19th of February, 2008 and his claims were for:

i. The sum of Two Million and Five Thousand Naira (N2,005,000.00) only being refund of the sum collected by the defendant pursuant to a business transaction sometime on or about the year 1999.

ii. 30% interest from 25th of December, 1999 up to date of judgment.

iii. Thereafter 10% interest on the entire judgment sum until same is fully liquidated.

iv. Costs of this action.

The writ of summons was accompanied by a statement of claim, list of witness to be called at trial, written deposition on oath of the witness and copies of the documents to be relied upon at the trial. The Respondent also filed a motion on notice dated the 21st of January, 2008 pursuant to the provisions of Order 11 Rule 1 and of Order 15 Rule 1 of the High Court of Kaduna State (Civil Procedure) Rules 2007 praying the lower Court to enter summary judgment in his favour. The motion was supported by an affidavit and to which were attached exhibits.

The records of appeal show that the bailiff of the lower Court deposed to an affidavit of service on the 22nd of February, 2008 showing that he served some court processes on the Appellant by delivering them to the Appellant’s son on the 20th of February, 2008 at the residence of Appellant. The records also show that following the inability of the bailiff of court to effect personal service of the processes on the Appellant, the Respondent filed a motion ex parte dated the 12th of March, 2008 seeking for an order of substituted service of processes by pasting at the last known address of the Appellant. The records show that the lower Court heard the application on the 17th of March, 2008 and it granted the order of substituted service. There is a second affidavit of service deposed to by the bailiff of the lower Court on the 8th of April, 2008 stating that he served some processes on the Appellant by pasting on the 7th of April, 2008.

The Appellant did not enter appearance or file any response to the processes of the

Respondent and on the 26th of May, 2008, the lower Court heard the motion of the Respondent praying for summary judgment under Order 11 of the High Court of Kaduna State (Civil Procedure) Rules 2007 and it granted the application and entered judgment against the Appellant in the sum N2,005,000.00 together with interest at the rate of 10% per annum from the date of judgment. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 5th of February, 2010 against it. The notice of appeal contained three grounds of appeal.

In compliance with the Rules of this Court, counsel to the Appellant filed a brief of arguments dated the 23rd of August, 2010 in ventilation of the grievances of the Appellant on this appeal. The Respondent reacted with a brief of arguments dated the 28th of October, 2013 and filed on the 29th of October, 2013 and which brief of arguments was deemed properly filed by this Court on the 30th of November, 2013.

At the hearing of the appeal, Counsel to the parties relied on and adopted their respective briefs of arguments.

Counsel to the Appellant distilled three issues for determination in his brief of arguments and these were:

i. Whether the trial Court was correct to have proceeded to hear and grant the motion for summary judgment in the absence of proof or affidavit of service and whether the lack of service did not vitiate the whole proceedings.