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.

Respondent’s counsel for these reasons asked that the appeal be dismissed. This appeal has been argued on a very narrow compass. One is inclined to agree with respondent’s counsel that two questions need to be answered in resolving the single issue raised by the appeal. These questions devoid of all pretensions are:

(a) Was the lower court right in its finding that the appellants’ last place of abode was in Iru-Owelle Village, Awka Etiti, Anambra State?

(b) Was the lower court correct in refusing to set-aside its order for substituted service on the appellants at their last place of abode as the court held earlier found?

Unmistakably, the court had powers under Order 10 rule 5(d) of the Rules of Anambra State High Court to issue ex-parte order for substituted service. Resort to this rule of court would be justified in the circumstances provided by the rule itself. Order 10 rule 5 paragraph D provides:-

“Where it appears to the court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the court may order that service be effected either:

(a) …

(b) …

(b) …

(d) By notice put up at the principal court-house of or some other place of public resort in the judicial division wherein the proceeding in respect of which the service is made is instituted, or at the usual or last known place of abode, or business of the person to be served”. (Italics for emphasis)

It appears to me from arguments that both counsels are correctly agreed upon the import of this rule of court. It is not gainsay that the court too, from its ruling had a full grasp of the essence of this rule of court. In essence, like instances of personal service, the paramount drive is to bring to the knowledge of the person so served the complaints against him and in so doing the opportunity of contesting the reliefs claimed pursuant to the complaints. See Okereke v. Ejiofor (1996) 3 NWLR (Pt.434) 90 and Muhammed v. Mustapha (1993) 5 NWLR (Pt.292) 222.

It is not difficult to understand why the rules of court insist that persons against whom reliefs are sought must be notified. In the adversarial system we run, rule of natural justice requires that persons whose civil rights and obligations are to be determined must first be heard. The right to notice of complaint to such persons from complainants has been guaranteed by S.33 (1) of the 1979 Constitution. Failure to issue this required notice has been adjudged a fundamental slip. The slip occasions injustice and is held to vitiate all proceedings undertaken without the requisite knowledge and the opportunity of reacting to the accusations about which reliefs were demanded and perhaps even obtained. See Olawuyi v. Adeyemi (1990) 4 NWLR (Pt.147) 746 at 769 CA; Adigun v. Attorney General of Oyo State (1987) 1 NWLR (Pt.53) 678 at 709 SC; Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419 SC; Skenconsult (Nig.) Limited v. Ukey (1981) 12 NSCC 1; Emuakpor v. Ukaube (1975) 12 SC 41.

Both counsels are further at one as to the circumstances that will justify an appeal court’s interference regarding decisions arrived at by trial courts.

By decisions of this court and indeed the Supreme Court, the primary function of findings of facts in a matter has always been considered that of the trial court. However, where the trial court fails to shoulder this responsibility or does so incorrectly, the Court of Appeal, in the exercise of its appellate jurisdiction is empowered to make any such findings of facts. See UBA Limited v. Achoru (1990) 6 NWLR (pt.156) 254 at 282 SC; Omoregbe v. Lawani (1980) 3 – 4 SC 108; Lion Building v. Shadipe (1976) 12 SC 135 and Macaulay v. Tukuru (1881-1911) 1 NLR 35. In Egri v. Uperi (1974) 1 NMLR 22 cited and applied in UBA Limited v. Achoru supra, it was held that although the Court of Appeal, in the exercise of its appellate jurisdiction, is entitled to make any findings of facts which the trial court could have made, it has no right to substitute its own views of the evidence for those of the trial court.

In the case at hand, both counsels have ably restated the primary issue which called for the lower court’s decision and its finding thereto. In determining the appellant’s usual or last known place of abode and if by the substituted service the court had earlier ordered appellants had come to know of the pending suit against them, the trial court made some findings based on the evidence before it. These findings and the conclusions arrived at as a result of them are manifested largely at Pp. 100 – 101 of the printed record. The respondent’s counsel has commendably reproduced these findings and conclusions at P.6 – P.8 of their brief.

The learned trial Judge made the following findings of fact:-

1. “The evidence on both sides which I accept is that the plaintiff and his sole witness as well as the 1st defendant are brothers of full blood whose father’s home is in Iruowelle Village, Awka-Etiti, Anambra State”.
2. “The 1st defendant in his testimony on oath on 24th of March, 1995 said:-

‘The residential place of my late father is at Obi Amanchukwu in Iruowelle’. I inherited the house in 1970”.

3. “The 1st defendant is a trader and has shop in Lagos where he does business. He also has a shop in Onitsha and a shop in Kano and does business in Onitsha and Kano”.
4. ‘Exhibit ‘A’ states that both the plaintiff and the 1st defendant are resident in Anambra State”.
5. ‘Exhibit ‘A’ clearly shows that the 1st appellant is the owner and in possession of Obi Amanchukwu situate at Iruowelle, Awka Etiti.”

And in the end, the learned trial Judge stated at p. 101 paragraph 2 as follows:-

“It seems to me after consideration of the documentary evidence in this application particularly Exhibit ‘B’ annexed to the affidavit in support of the motion for an order of interlocutory injunction, Exhibit ‘A’ annexed to the counter-affidavit filed in opposition to the instant application and Exhibit ‘A’ annexed to the further counter-affidavit, that the evidence of the plaintiff and his sole witness who is a brother of full blood to both the plaintiff and the 1st defendant ought to the preferred to the evidence of the 1st defendant and his two witnesses.

It is therefore my finding of fact in this application that the 1st – 8th defendants at all times material to the instant application have their usual place of abode at Obi Amanchukwu situate at Iruowelle village, Awka-Etiti. I accept the evidence of the plaintiff and his sole witness and I reject the evidence of the 1st defendant and his witnesses where their evidence conflicts with the evidence of the plaintiff and his sole witness.”

From the foregoing it must be conceded to counsel that the trial court had fully considered and properly evaluated the evidence before accepting that the 1st appellant’s usual place of abode or his last known place of abode was the place to which the order for substituted service related and at which the service was effected. Furthermore, by the testimony of DW.1 (p.88-99 of print record) called by respondents which the trial court preferred, appellant was shown to have had the knowledge of the pending suit against him such that the knowledge had come consequent upon the substituted service effected.

The decision of the trial court refusing the appellants the indulgence they sought is unassailable. Correct considerations did inform the decision which respondent’s counsel rightly commends that it be upheld. Appellants have not convinced us as to the perversity of the decision. We cannot interfere with such a decision. The issue for determination is thus resolved in favour of the respondents. The grounds of appeal have failed and the appeal is hereby accordingly dismissed. I award N3,000 against the appellants.

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Other Citations:(2000)LCN/0778(CA)