Chief A. O. Aina V. Alhaja (Chief) Amina a. Abiodun & Anor. (2005)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In this appeal, the plaintiff is seeking to contest the decision of High Court of Lagos State, setting aside its own decision in suit No. ID/1172/95. The ruling set aside a judgment given in default of appearance and statement of defence.

The writ of summons and other processes in this suit were served on the defendants by pasting same on the walls of No. 16, Ajileye Street, Ilaje, Bariga, being the last known address of the defendants pursuant to an order of substituted service granted by the trial Court. In spite of the service, the defendants neither filed their memorandum of appearance nor filed their statement of defence. The plaintiff, in addition to calling three witnesses, testified in support of his claim. His counsel addressed the court before judgment was entered in his favour on 27th November, 1998.

Thereafter execution was duly levied on the 5th February, 1999. It was after the execution had been carried out that the defendants by their application dated 17th March, 1999, filed on the following day, applied for the judgment to be set aside. The application was heard by another Judge of the High Court and was granted.

The plaintiff was dissatisfied with the decision and has appealed to this court. The plaintiffs filed a brief of argument as well as appellants reply brief. The defendants filed respondent’s brief. The plaintiff (hereinafter referred to as appellant) framed a host of issues which are-

“3.01 Whether service by substituted means, to wit by posting at the last address, which is also the property of the defendants constitutes proper service or sufficient notice to the defendants.

3.02. Whether the bailiff’s affidavit of service, being prima facie evidence, is not conclusive proof of service in this case, simply because the defendants said they did not get notice of the process posted at their last known address, and, the defendants having so asserted, whether the burden shifted on the plaintiffs to establish that the defendants were properly served and whether it is not the duty of the court to call for oral evidence, particularly from the bailiff of court to enable the court arrive at a just decision.

3.03. Whether in law the learned trial Judge properly assessed the evidence before him and was right in concluding that as at the time the processes of court were served by posting at the last known address of the defendants they no longer had an address at the house where the processes were posted, that is No. 16 Ajileye Street, Ilaje, Bariga, Lagos State.

3.04. Whether in view of the evidence before the court the learned Judge was right to have concluded that the various visits to the Police Station by the parties it seemed unlikely that the 1st defendant would get notice of the posted writ on declaration of title and fold her arms.

3.05. Whether the learned trial Judge was right in not considering the contention of the plaintiff that the rules of court (Order 33 rule 4) enjoined the defendants to apply to set aside the judgment of court within six days of its delivery, failing which they ought to have applied for, and possibly, granted extension of time to do so before their application to set aside could be considered. But in this case, was the learned trial Judge right to have considered and granted the defendants application to set aside even though the defendants neither proffered any argument for, nor were they granted extension of time to apply to set aside the judgment.

3.06. Whether the learned trial Judge was right in setting aside the judgment of his learned brother of concurrent jurisdiction”

The defendants (hereinafter referred to as the respondents) framed two issues in their joint respondents’ brief of argument. The respondent’s issues are:

“3.01. Whether it was proper for the appellant in the circumstances of this suit to effect service of the court processes on the respondents who are not ordinarily resident in Lagos at No. 16, Ajileye Street, Ilaje, Bariga, in preference to service of the court process through the respondent’s known agents who are working as artisans on the land in dispute.

3.02 Whether in the circumstances of suit No. ID/1172/95 between the parties herein the learned Honourable Justice A. F. Adeyinka of the High Court of Lagos State was right, in setting aside the earlier judgment of his learned brother, Oduneye, J.”