IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 29th of April, 2014

CA/K/227/2010

BETWEEN

ALHAJI ABDULAZEEZ DANMUSA ..........   APPELLANT

V.

ALHAJI HASSAN BARAU  .........  RESPONDENT

REPRESENTATION

M. T. Mohammed with S. T. Zailani for Appellant

Suleiman Shuaibu with I. Ibrahim & Mustapha Yahaya for Respondent

MAIN JUDGMENT

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.
 

ii.      Whether the lower Court's judgment can be sustained in view of the inadmissible evidence placed before the Court.
 

iii.    Whether the trial Court was right to have delivered its judgment on the 26th of May, 2008 without putting the Appellant on notice and if answered in the negative whether such failure is not an infraction on the Appellant's right to fair hearing.

Counsel to the Respondent formulated two issues for determination in his own brief of arguments. These were:

i.      Whether in the circumstance, the Appellant can sustain the claim of non-service of hearing notice of the Respondent's motion for summary judgment.
 

ii.    Whether the trial court had rightly considered and determined the Respondent's motion for summary judgment.

Reading through the processes in this appeal, it is the view of this court that the two issues for determination formulated by the Respondent properly articulate the relevant matters in this appeal. This Court will resolve this appeal on these two issues for determination.

On the first issue for determination, Counsel to the Appellant referred to the affidavit of service of the processes effected on the Appellant on the 7th of April, 2008 by pasting and stated that the affidavit listed the documents served by pasting as (i) a Court order, (ii) a hearing notice, and (iii) the writ of summons, and that the motion for summary judgment that was moved and granted by the lower court on the 26th of May, 2008 was not listed as one of the documents served. Counsel stated that the lower Court was thus in error when it stated in the judgment that "the defendant was served with writ of summons and other processes including an application for summary judgment ..." as there was no evidence on the record to support the above finding. Counsel stated that the lack of evidence of service of the motion for summary robbed the lower court of jurisdiction to hear the motion and that the proceedings of the lower Court of the 26th of May, 2008 on the motion for summary judgment, including the judgment, are liable to be set aside and he referred to the cases of Ahmed v. Adeyemi (2007) All FWLR (pt 395) 463 and Tuoyo Holdings Ltd V. Niger-Benue Transport Co. Ltd (2007) All FWLR (Pt 356) 800.

On the second issue for determination, counsel stated that the only relevant evidence in the affidavit in support of the motion for summary judgment is contained in paragraph 4 thereof wherein the Respondent referred to the transaction between the parties which he said was evidenced by a written agreement dated the 25th of December, 1999 and that the Hausa version with its English translation were attached as Exhibits A and B respectively. Counsel stated that the two documents attached to the affidavit were, however, both in Hausa language and there was no English translation and that the two documents were worthless as they were not in the language of the court and he referred to the case of Iwambe Vs Swande (2002) FWLR (Pt 85) 355. Counsel stated that with the worthlessness of the exhibits, there was no iota of evidence in support of the claim of the Respondent as made out on the motion for summary judgment and that as such the motion ought to have been refused on the merits. Counsel stated that it was irrelevant that the Appellant did not file a response to the processes of the Respondent as this did not remove the onus on the Respondent to depose to sufficient facts to sustain his claim and he referred to the cases of Shamaki Vs Baba (2000) FWLR (Pt 26) 878, Owor Vs Christopher (2010) All FWLR (pt 511) 962, amongst others. Counsel stated that there was no sufficient evidence to sustain the claim of the Respondent and that as such the lower court ought not to have entered judgment on the motion for summary judgment and that the judgment is liable to be set aside and he referred to the case of Sagay v. Sajere (2000) FWLR (pt 7) 1111.

Counsel urged this court to resolve the two issues for determination in favour of the Appellant and to set aside the judgment of the lower Court.

In response, on the first issue for determination, Counsel to the Respondent conceded that it was a rudimentary requirement of the law that a court can only assume jurisdiction to determine a matter before it when all the parties have been served and put on notice appropriately and he stated that service of processes can be effected either personally or through substituted means and that service by substituted means was as good as personal service once the order for substituted service was duly obtained; he referred to the cases of Mbadinuju v. Ezuka (1994) 8 NWLR (Pt 364) 535 and Ebe vs Ebe (2004) 3 NWLR (pt 860) 222. Counsel stated that in the instant case, the Respondent obtained a proper order of substituted service and the order was duly executed and that it was apparently logical to conclude that the Appellant was served or deemed to have been duly served and put on notice of the motion for summary judgment and the Appellant cannot thus be heard to complain of non-service of the motion for summary judgment. Counsel stated that when the motion came up for hearing, the lower Court satisfied itself that the Appellant was served with the motion by asking the Registrar of Court and who promptly confirmed service of the motion on the Appellant. Counsel stated further that the affidavit of service deposed to by the bailiff of Court showed that the Appellant was served with the hearing notice for the day the motion was heard and that a critical examination of the affidavit of service dated 8th of April, 2008 shows that though the motion for summary judgment was not one of the processes expressly stated to have been served, it must be presumed to be one of them as it was obvious that the bailiff did not intend to exhaust all the list of processes served on the Appellant. Counsel stated that the affidavit evidence constituted sufficient evidence of service of the motion for summary judgment on the Appellant and that the first issue for determination should be resolved in favour of the Respondent.

On the second issue for determination, Counsel stated that the motion for summary judgment was brought pursuant to the provisions of Order 11 of the High Court of Kaduna State (Civil Procedure) Rules and that the affidavit in support contained cogent and material evidence and which were not controverted and that as such the motion was properly determined. Counsel stated that even if the two documents, Exhibits A and B, were rejected as inadmissible, it does not diminish from the unchallenged contents of the affidavit in support and that the law is that where the contents of an affidavit are unchallenged they are deemed true and correct and he referred to the case of Best Vision Construction Ltd V. UAC Plc (2003) 13 NWLR (pt 838) 594. Counsel stated that the lower Court was thus very correct in entering judgment on the motion for summary judgment.

The first issue for determination touches on service of the motion for summary judgment on the Appellant. Now, service of processes on a party to the proceedings is a fundamental step in the litigation process. It is what ignites the jurisdiction of the court to hear the matter or an issue in a matter and to make orders against such a party - National Electric Power Authority Vs Uruakpa (2010) 12 NWLR (Pt 1208) 298 and Federal Capital Development Authority V. Koripamo-Agary (2010) 14 NWLR (Pt 1213) 264. It is not a matter for the exercise of discretion by the Court. It is a crucial step that must be properly taken in the prosecution of an action and where it is not so taken, the action or the proceedings on the issue is aborted and whatever had been done thereon is null and void - Eimskip Ltd Vs Exquisite Industry (Nig) Ltd (2003) 4 NWLR (Pt 809) 88, Uwaokop V. United Bank of Africa Plc (2013) All FWLR (pt 690) 1316. In Mark v. Eze (2004) 5 NWLR (Pt 865) 54, the Supreme Court at page 79 stated that:

"Service of the process especially originating process is an essential condition for the court to have competence or the jurisdiction to entertain the matter. Further, failure to comply with this condition would render the whole proceedings, including the judgment entered, and all subsequent proceedings based thereon, wholly irregular, null and void."

The parties were agreed that the lower Court made an order of substituted service of the processes in the matter on the Appellant by pasting and that there was before the lower Court an affidavit of service deposed to by the bailiff stating that certain processes were served on the Appellant by pasting them at his last known address at No. 43, Conakry Avenue, Malali Low Cost, Kaduna on the 7th of April, 2008. The affidavit of service was deposed to on the 8th of April, 2008 (see page 31 of the records). It is a settled principle of law that where there is a dispute between the parties on service of a court process and there is an affidavit of service in the court's file deposed to by a bailiff of the Court, the Court must have regard to the affidavit of service in resolving the dispute because an affidavit of service deposed to by the person effecting the service, setting out the fact, place, mode and date of service and describing the process or document served is prima facie proof of the matters stated in the endorsement or affidavit - Martin Schroder & Co v. Major & Company (Nig) Ltd (1989) 2 NWLR (Pt 101) 1 at 11 and Okoye V. Centre Point Merchant Bank Ltd (2008) 15 NWLR (pt 1110) 335. The records of appeal show that the lower Court relied on the said affidavit of service of 8th of April, 2008 in making the statement in its judgment that "the defendant was served with writ of summons and other processes including an application for summary judgment..."

The contention of the Appellant in this appeal is that he was never served with the application for summary judgment and that the affidavit of service of the 8th of April, 2008 did not say that he was served with such a process. Is this contention correct?

The Supreme Court has held that where service said to be evidenced in an affidavit of service is disputed by a party, the court concerned has a duty to scrutinize the affidavit and satisfy itself that there had in fact been service of the relevant process on the party complaining - Okesuji v. Lawal (1991) 1 NWLR (Pt 170) 661 at 663 and Okoye v. Centre Point Merchant Bank Ltd supra. In First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247, the Supreme Court reiterated the point thus:

"Indeed, the court has a duty to meticulously verify/scrutinize the claim to service of process on any of the parties before it, service must be effected as required by law, swearing of affidavit of service by a court bailiff is not only required but the court must be convinced that the facts stated therein are relevant and more likely to be true in a given case. Any fact put in evidence or step taken by a bailiff which creates doubt, suspicion or confusion should not be relied upon by the court to deprive or deny a party fair hearing or trial which is guaranteed to every citizen by the Constitution."

Now, Order 7 Rule 13 of the High Court of Kaduna State (Civil Procedure) Rules 2007 provides that "after serving a process, the process server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and shall exhibit a copy of the process served" and that "after service, the affidavit shall be prima facie proof of service".

It is trite that where the words of a statute are clear, unambiguous and unequivocally express the intention of the lawmakers, effect must be given to them - Dangana Vs Usman (2013) 6 NWLR (Pt 1349) 50. Thus, by the High Court Rules of Kaduna State, an affidavit of service must (i) set out the fact, date, time, place and mode of service; (ii) describe the process served; and (iii) exhibit a copy of the process served. Reading through the contents of the relevant affidavit of service in the instant case, i.e. the affidavit of service of the 8th of April, 2008, the bailiff of the lower Court stated that on the 7th of April, 2008 at 4pm he served the Appellant with "a court order, hearing notice and writ of summons" issued out of the High Court of Kaduna personally by pasting at No. 43, Conakry Avenue Malali Low Cost, Kaduna. Copies of the processes served were not exhibited.

Very importantly, the bailiff of court did not mention the motion for summary judgment dated the 21st of January, 2008 and filed pursuant to the provisions of Order 11 Rule 1 and Order 15 rule 1 of the High Court of Kaduna State (Civil Procedure) Rules as one of the documents served on the Appellant on the 7th of April, 2008 and a copy of the motion was not exhibited along with the affidavit of service as one of the processes served. There is no affidavit of service in the records of appeal setting out the fact, date, time, place and mode of service of the motion for summary judgment.

Counsel to the Respondent conceded in his brief of arguments that a critical examination of the affidavit of service dated 8th of April, 2008 shows that the motion for summary judgment was not one of the processes expressly stated to have been served, but submitted that it must be presumed to be one of them as it was obvious that the bailiff did not intend to exhaust all the list of processes served on the Appellant and counsel urged this court to find that the affidavit evidence constituted sufficient evidence of service of the motion for summary judgment on the Appellant. It is trite that where there is a dispute on service of a court process, the issue of service cannot be presumed or assumed. It is a question of fact that must be clearly established by clear, credible and direct evidence - Anyoha V. Chukwu (2008) 4 NWLR (pt 1076) United Bank for Africa Plc V. Offiong (2011) LPELR-8934 (CA).

There was no evidence before the lower court confirming service of the motion for summary judgment in this matter on the Appellant. The first issue for determination in this matter is resolved in favour of the Appellant.

This resolution of the first issue for determination in favour of the Appellant effectively resolves this appeal as it is settled law that failure to serve a motion for judgment is a fundamental vice that vitiates the entire proceedings on the motion and entitles the party not served to an order setting aside the judgment entered on the strength of such a motion - African Continental Bank Plc V. Losada (Nig) Ltd (1995) 7 NWLR (Pt 405) 26, Guinness (Nig) Plc v. Ufot (2008) 2 NWLR (Pt 1070). The Appellant is thus entitled, without more, to have the judgment entered against him by the lower Court on the 26th of May 2008 set aside. This makes the consideration of the second issue for determination unnecessary and a mere academic exercise. It is trite that courts do not make a habit of indulging in such exercises and this court will not go against this established tradition. This appeal will be resolved only on the first issue for determination.

In conclusion, therefore, this court finds merit in this appeal and it is hereby allowed.

The 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 is set aside. The suit is remitted to the Chief Judge of Kaduna State for assignment to a Judge for further proceedings. Parties shall bear their respective costs of this appeal. These shall be the orders of the court.

DALHATU ADAMU, J.C.A.:

I agree.

ABDU ABOKI, J.C.A.:

I have had the privilege of reading the lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, and I agree with his reasons and conclusions reached therein that the appeal should be allowed.

I too allowed this appeal and abide by the consequential orders as to costs.