Multichem Industries Limited V. Comrade Harrison Musa & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of Oke-Lawal J. of the High Court of Lagos State in Suit No. ID/515/06 delivered on the 25th day of April 2008 dismissing the Defendant/Appellant’s application to set aside the service on it of the Originating Summons.

On 28/4/06, the Claimants/Respondents took out a writ against the Defendant/Appellant, their former employer, claiming general damages for breach of duty of care and/or compensation for injuries and losses occasioned by the hazardous chemicals they were compelled to handle in the course of employment without protective gadgets or safety measures. The Respondents claimed that the Writ of Summons, Statement of Claim and other front loaded processes were served on the Defendant/Appellant by a bailiff of the Lagos State High Court by name Sola Oladipo by delivering same to the receptionist of the Appellant Company on 10/5/06. He subsequently filed an affidavit of service on 15/5/06.

On 16/6/06, the Respondents filed another process titled “additional List of Exhibits….” They further claimed that another bailiff, Jide Craig was assigned to serve this process and that he did serve same on the Defendant/Appellant through the same receptionist of the Appellant Company on 16/6/06. He subsequently also filed an affidavit of service dated 21/6/06. The Respondents claimed that the Defendant/Appellant accepted service of this later process by Jide Craig but denied the former service by Sola Oladipo. On 9/1/07, the Appellant filed an application by motion on notice to set aside the service of the originating process by Sola Oladipo. Following conflicts in the affidavit evidence, the trial court ordered a trial to determine the issue of service. At the end of the trial, the court delivered its ruling dismissing the Appellant’s application.

The Appellant, dissatisfied with the said Ruling, filed the present appeal by notice of appeal containing five grounds. From the five grounds of appeal learned counsel for the Appellant distilled 3 Issues for determination as follows:-

(i) Whether or not from the evidence put forward at the trial there was service of the originating processes on the applicant.

(ii) Whether or not service of originating processes on a receptionist amount to proper service on a limited liability company.

(iii) Whether or not the lower court was correct to have ordered the Appellant to file its pleadings when it is yet to be served with the originating processes.

The Respondents on their part identified the following sole issue:-

(i) Whether or not the lower court was right in holding that there was proper service of the originating process on the Defendant/Appellant.

The sole issue formulated by the respondent’s counsel is more succinct and adequately captures the essence of this appeal. I shall therefore adopt the respondent’s sole issue in the determination of this appeal.

APPELLANT’S ARGUMENTS

The crux of the argument of the Appellant is that the findings of the lower court are at variance with the evidence before it and perverse in the sense that the conclusion that the receptionist was served with the originating processes was not borne out by the evidence. In support of this argument the appellant’s counsel submitted that the bailiff in his evidence could not identify or describe the Receptionist/Secretary he claimed to have served and that the processes were never signed for by the said Receptionist/Secretary or anyone whatsoever from the appellant Company. Appellant’s Counsel contended that contrary to the bailiff’s evidence, the receptionist/secretary of the appellant testified that she never saw the bailiff on the said days mentioned by the bailiff or any other day, and that she did not receive any process at any time from the bailiff. He further submitted that the appellant’s visitors’ register admitted in evidence as Exhibit G-G4 at the trial had no record of the bailiff visiting on any of the 5 days mentioned by the bailiff in the counter-affidavit and that the bailiff under cross-examination could not explain why his name did not appear in the visitors register though the names of other visitors appeared in the register on the days he claimed to have visited the appellant Company. Learned Counsel submitted that the finding of the lower court that Exhibits G-G4, the Visitors Register “is unreliable because another bailiff served the receptionist with the ‘Additional list of Exhibits’ and did not sign the register”, when in fact the evidence in this case was that the said “Additional list of Exhibits” was dropped at the gate as different from service on the Receptionist. Counsel contended that in fact, the Visitors’ Register is the single most important, crucial and pivotal evidence in the resolution of any conflicting evidence of PW 1, the Bailiff who claimed to have served the receptionist and DW2, the receptionist who claimed that she never saw the Bailiff. Counsel submitted that the court is duty bound to accept Exhibit G-G4 i.e. the Visitors’ Register as it stood unchallenged and uncontroverted. It is trite that unchallenged evidence must be accepted save where such evidence is patently perverse or is improbable to the fact and circumstances of the case.

The Appellant’s Counsel posited that in finding that “in observing the witnesses for the Defendant in court, there was indeed attempt by them to conceal facts during cross-examination and they deliberately avoided answering questions put by counsel”, the lower court failed to identify what questions were avoided or sought to be avoided by the defendant’s witnesses. Learned counsel argued that the Appellant was forthright in seeking for justice by informing the claimant through two letters to their counsel that it was yet to be served with the originating processes; and by its counsel showing preparedness to accept service in court which was however rebuffed by the Respondent’s Counsel. Learned Counsel urged this Court to resolve the question of whether the receptionist was served with the originating processes in favour of the appellant on the ground that it is not enough for the trial judge to say that she believed that the receptionist was served, without any evidence supporting such belief. Counsel relied on the cases of Okonkwo v CCB NIG. Plc. (1997) 6 NWLR Pt 507, 48 Ratios 52-53 and Kwajaffa & Ors v Bank of the North (2004) Vol 8 MJSC 106 at 126, paras D-F in support of this contention and in particular the observation in Okonkwo v CCB NIG. Plc. (Supra):