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Abutu vs. Onyedima

TIMOTHY  TOR  ABUTU

V

LUCKY  ONYEDIMA

COURT OF APPEAL

( JOS  DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

IBRAHIM TANKO MUHAMMAD, JCA ( Read the Lead Judgment )

IFEYINWA CECILIA NZEAKO, JCA

CA/J/178/99

MONDAY, 8TH JULY, 2002

APPEAL - Issue that does not relate to ground of appeal - Effect thereof

EVIDENCE - Evidence of service of process - Production of affidavit of service without proof of signature - Whether a good evidence of service

PRACTICE AND PROCEDURE -  Substituted service - Manner for - Who determines

PRACTICE AND PROCEDURE - Service of process - Evidence of service  Production of affidavit of service without proof of signature Whether a good evidence of service

PRACTICE AND PROCEDURE - Service of process - Essence of

PRACTICE AND PROCEDURE - Substituted service - Manner in which it may be effected

Issue:

Whether in the circumstances of this case there was proper service of the process of the court in suit No. MAC/16/98 effected on the appellant.

Facts:

This action arose at the lower court as a result of a motor accident involving the respondent’s vehicle being driven by the 2nd plaintiff and that of the appellant. It was the case of the 2nd plaintiff that the appellant drove his car negligently and without due care and attention oversteered to his lane, violently colliding with his vehicle smashing it by the driver’s side and thereby causing extensive damages. The appellant accepted liability and agreed to repair the 1st plaintiff’s vehicle. The appellant deposited the sum of N20,000.00 being advance payment made to the 1st plaintiff. He agreed to make further payments but neglected or refused to do so. The 1st plaintiff decided to repair his vehicle and subsequently brought an action in the lower court as 1st plaintiff against the appellant as defendant claiming N250,000.00 being special and general damages suffered by the plaintiffs as a result of the accident.

The appellant did not file any memorandum of appearance or statement of defence. He did not put up appearance in the matter. An exparte motion for an order of substituted service on the appellant was filed, moved and was granted by the court.

 Accordingly, substituted service of the summons and other court processes were effected on the appellant by pasting same at No 25D Akume Terhemba Street, New GRA Gboko the residence of the appellant. After the expiration of the statutory period for filing of defence, the respondent’s counsel filed a motion for judgment. The motion was served on the appellant together with a hearing notice. After taking the motion for judgment, the learned trial Judge adjourned the case for judgment. Judgment was subsequently delivered after hearing witnesses for the respondents. The respondent’s claim succeded and a total award of N215,440.00 was made by the trial court in favour of the respondents.

Dissatisfied with the judgment, the appellant brought a motion for setting aside the judgment on the ground that he was not served with any process of court. The motion was heard. In his considered ruling, the learned trial Judge dismissed the motion and refused to set aside his judgment. Being aggrieved further, the appellant appealed to the court of appeal.