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Societe Generale Bank (Nig.) Ltd. vs. Adewunmi

SOCIETE GENERALE BANK (NIG.) LIMITED

V

JOHN ADEBAYO ADEWUNMI

SUPREME COURT OF NIGERIA

MUHAMMADU LAWAL UWAIS, CJN ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC

ANTHONY IKECHUKWU IGUH, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC ( Read the Lead Judgment ) DAHIRU MUSDAPHER, JSC

SC. 65/1999

FRIDAY, 11TH APRIL, 2003

JURISDICTION - Service of Process - Non-service - Whether deprives court of competence to determine suit

PRACTICE AND PROCEDURE - High Court Civil Procedure Rules of Kaduna State - Order 12, rules 1 and 28 thereof - Purport of

PRACTICE AND PROCEDURE - Service of Process - Conditions to be satisfied in proof of - Order 12, rules 1 and 28, Kaduna State High Court (Civil Procedure) Rules

PRACTICE AND PROCEDURE - Service of Process - Failure so to do where legally required - Effect on proceedings

PRACTICE AND PROCEDURE - Service of Process - Modes of provided for in the Rules

PRACTICE AND PROCEDURE - Service of Process - Non-service of process - Effect on proceedings

PRACTICE AND PROCEDURE - Service of Process - Non-service of process and validity of non-service - Whether distinguishable

PRACTICE AND PROCEDURE - Service of Process - Proof of by affidavit of service - Purpose of

STATUTE - High Court (Civil Procedure) Rules of Kaduna State - Order

12 , rules 1 and 28 thereof - Purport of

Issue:

Whether the conclusion or findings by the court below that there was no credible proof that the appellant was served with the writ of summons and other court processes etc. is sustainable from the facts and evidences before it.

Facts:

This action was instituted under the Undefended List pursuant to Order 22, rules 1 and 2 of the High Court (Civil Procedure) Rules of Kaduna State. The plaintiff’s claim against the defendant was for the sum of N66,216.01 being the outstanding balance of overdraft facilities and loan granted to the defendant on 24th of May, 1982. The amount having been due, the defendant failed, refused and/or neglected to pay despite repeated demands.

Further to his claim, the plaintiff sought compound interest at the rate of 28% from 30th January, 1993 to the date of judgment and thereafter, interest at the rate of 15% until the liquidation of the entire debt.

Owing to the difficulties encountered in trying to effect service, the plaintiff sought and obtained an order of court to serve by substituted means, to wit; by pasting same on the defendant’s residence and last known address. On the 14/2/94, the court was informed by the plaintiff’s counsel that service had been effected on the defendant and at the instance of counsel, judgment was entered against the defendant in accordance with the undefended list procedure.

Thereafter, the plaintiff obtained leave to attach and sell the immoveable property of the defendant in satisfaction of the judgment debt. Consequent upon which the defendant’s property at No. 4A Dawaki Road, Kaduna was duly sold.

The defendant appealed to the Court of Appeal which court allowed the appeal on the grounds that the defendant/appellant was not served the processes of court so as to bring him within the purview of the trial court’s jurisdiction.

Dissatisfied, the plaintiff/respondent appealed to the Supreme Court, while the defendant/appellant cross-appealed.

The court considered Order 12, rules 1 and 28 of the Kaduna State High Court (Civil Procedure) Rules:

“1. Service of writ of summons, notices, petitions, pleadings, orders, summonses, warrants and all other proceedings, documents, or written communications of which service is required, shall be made by the Sheriff or a deputy Sheriff bailiff, officer of the court, or by a person appointed therefore ( either especially or generally) by the court, or by a Judge in Chambers, unless another mode of service is prescribed by these rules, or the court or Judge in Chambers otherwise directs:

Provide that when a party is represented by a legal practitioner, service of notices, pleadings, petitions, orders, summonses, warrants and all other proceedings, documents or written communications of which personal service is not required may be made by or on such legal practitioner or his clerk under his control.

28. In cases where service of any writ or document shall have been effected by a bailiff or other officer of the court an affidavit of service sworn to by such bailiff or other officer shall on production, without proof of signature, be prima facie evidence of service.”