Mrs. Comfort Akinmosin V. Mrs. Ajoke Makinde & Anor. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment)

By their application dated January 23, 2006, the plaintiffs (the respondents in this appeal) entreated the High Court of Ondo State, Okitipupa Division, with a supplication for an order for the issuance and service of the writ of summons on the defendant (now appellant) in an address outside its jurisdiction. That address was given as No. 66 Adeoye Street, Bariga, Lagos. On January 31, 2006, the said court (hereinafter referred to as the lower court), granted the order as prayed.

It would appear that attempts to effect service on the defendant proved abortive, hence, the plaintiffs (respondents herein) moved the lower court for leave to serve the defendant (appellant) by substituted means. On May 16, 2006, the lower court granted the said application. The plaintiffs/respondents’ account was that the bailiffs of the lower court and of the Lagos High Court, duly, posted the said processes at the entrance of the appellant’s house (supra). A proof of service of the process was prepared and filed in court.

On January 9, 2007, upon the application of the plaintiffs/respondents, the matter was set down for hearing. By order of court, the case was adjourned to January 22, 2007 for trial. It is clear from page 17 of the records that the court did not order the issuance of hearing notice for service on the defendant at the close of its proceedings for January 9, 2007.

On January 23, 2007, the matter was, further, adjourned to February 6, 2007 for hearing. Although the defendant was absent, it is clear from pages 17 and 18 of the records that no hearing notice was issued for service on her for the hearing of the case on the said February 6, 2007. The matter was heard on February 6, 2007. The defendant was absent. There was no report of service on her.

At the close of the plaintiff’s case, the court reserved its judgment. Again, no hearing notice was issued for service on the defendant. On May 2, 2007, when the judgment was delivered, the defendant was absent. She was not represented either, (page 19 of the record). It is clear, therefore, from pages 17; 18 and 19 of the records that no hearing notice was ever issued for service on the defendant. From those pages of the records, it is evident that none was ever served on her for the hearing of the case. From the same pages of the records, it is, equally, clear that she had no notice of the date of the delivery of the said judgment.

About two weeks after, the defendant/appellant beseeched the lower court with an application to set aside the said judgment. In the affidavit in support of the application, she denied the service of the court processes on her. Paragraphs 7 and 10 are germane. According to her, it was impossible for the said bailiffs to gain access into the said premises for the purpose of posting the said processes at the entrance thereof.

That being the residence of the Commissioner of Police, “with all security apparatus, the bailiff could not gain access to the main entrance…without the knowledge of the police men around”. In its ruling of May 27, 2009, the lower court dismissed the application; hence, it declined the invitation to set aside the said default judgment. Aggrieved by that ruling, the defendant/appellant appealed to this court. From her five Grounds of appeal, she distilled the following issues for the resolution of her appeal.

ISSUES FOR DETERMINATION

Whether the trial judge was right when it (sic) refused to set aside its own default judgment on the ground that there was no counter affidavit in rebuttal of Affidavit of service?

Whether filling of affidavit of service is a conclusive proof that the Appellant was served with the court processes in view of the salient facts deposed to by the Appellant in its rebuttal?

Whether the trial judge did evaluate the affidavits evidence before him and gave reasons for his decision before he arrived at his ruling?

Whether the failure of the trial judge to set aside its Default judgment denied the Appellant her fundamental right to fair hearing and possession of property and thereby occasioned a miscarriage of justice?

Whether the trial judge did offend the provision of the 1999 constitution of the Federal of Republic of Nigeria when it (sic) delivered its judgment outside the statutory period provided by the Constitution?