- Abutu vs. Onyedima
- ₦ 200
Abutu vs. Onyedima
COURT OF APPEAL
ALOMA MARIAM MUKHTAR, JCA ( Presided )
IBRAHIM TANKO MUHAMMAD, JCA ( Read the Lead Judgment )
IFEYINWA CECILIA NZEAKO, JCA
8TH JULY, 2002
- 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
AND PROCEDURE - Service of process - Essence of
PRACTICE AND PROCEDURE - Substituted service - Manner in which it may
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.
arose at the lower court as a result of a motor accident involving the respondentâ€™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 driverâ€™s side and thereby causing extensive
damages. The appellant accepted liability and agreed to repair the 1st
plaintiffâ€™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.
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
respondentâ€™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
respondentâ€™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.