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Mark vs. Eke

KALU MARK

MAR-PRIK INDUSTRIES NIG. LTD.

V

GABRIEL EKE

SUPREME COURT OF NIGERIA

SALIHU MODIBBO BELGORE, JSC (Presided)

UTHMAN MOHAMMED, JSC

ANTHONY IKECHUKWU IGUH, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

DAHIRU MUSDAPHER, JSC (Read the Lead Judgment)

SC. 35/1997

FRIDAY, 23RD JANUARY, 2004

APPEAL - Ground of appeal - Issue not related to any ground of appeal -  Whether court can deal with

COMPANY LAW - Corporation - Service of process thereon - Procedure for substituted service - Whether applicable in respect of a corporation

COMPANY LAW - Registered company - Service of court process thereon

-  Procedure for

COURT - Court process - Failure to serve - Effect

COURT - Court process - Proof of service of - Importance of - Failure to comply with relevant condition - Effect

COURT - Court process - Service of - Substituted service - Procedure for

COURT - Court process - Service of court process on a registered company - Procedure for

COURT - Defective judgment of court - Court or person affected thereby - Whether can have it set aside

COURT - Inherent jurisdiction of to set aside own judgment

COURT - Issue not related to any ground of appeal - Whether court can deal with

COURT - Judgment of obtained on the merit under undefended list procedure - Whether court that enters it can set aside

COURT - Jurisdiction and competence of to hear matters - When has

COURT - Trial court - Duty on to call oral evidence to resolve conflicting affidavits

EVIDENCE - Oral evidence - Duty on trial court to call to resolve conflicting affidavits

EVIDENCE - Proof - Proof of service of court process - Importance of

JUDGMENT AND ORDERS - Defective judgment of court - Court or person affected thereby - Whether can set it aside

JUDGMENT AND ORDERS - Judgment of court - Inherent jurisdiction of court to set aside

JUDGMENT AND ORDERS - Judgment of court - Judgment obtained on the merit under undefended list procedure - Whether same court who gave judgment can set aside

JUDGMENT AND ORDERS - Order or judgment of court - Order or judgment made against a defendant not served with originating process - Effect of

JURISDICTION - Inherent jurisdiction of court to set aside own judgment

JURISDICTION - Jurisdiction and competence to hear matters - When a court has

PRACTICE AND PROCEDURE - Conflicting affidavit - Duty on trial court to call oral evidence to resolve conflicting affidavits

PRACTICE AND PROCEDURE - Court process - Failure to serve Effect

PRACTICE AND PROCEDURE - Court process - Proof of service of court process - Importance of

PRACTICE AND PROCEDURE - Defective judgment of court - Court or person affected thereby - Whether can have same set aside

PRACTICE AND PROCEDURE - Order or judgment of court - Order or judgment made against a defendant not served with originating process - Effect of

PRACTICE AND PROCEDURE - Registered company - Service of court process thereon - Procedure for

PRACTICE AND PROCEDURE - Service of court process - Substituted service - Procedure for

PRACTICE AND PROCEDURE - Service of court process - Substituted service - Procedure for - Whether can be made to a corporation

PRACTICE AND PROCEDURE - Undefended list procedure - Judgment obtained on the merit under same - Whether court which gave judgment  can set aside

Issues:

1.             Whether under the laws of Nigeria the only option available to a party disputing a judgment entered against that party under the Undefended List is an appeal against that judgment.

2.             Whether the conclusion that the appellants were properly served with the writ of summons without oral evidence being called to resolve the issues was proper.

3.             Whether the judgment of the High Court which was sought to be set aside was a competent judgment.

4.             Whether issue 2.03 in the Court of Appeal had no sustaining ground.

5.             Whether a bailiff’s affidavit of service is a conclusive proof of service under the law.

Facts:

Gabriel Eke, the respondent herein, was the plaintiff before the High Court of Abia State in the Aba Judicial Division holden at Aba, where he claimed against the appellants herein, as the defendants, jointly and severally as follows:-

“The plaintiff claims against the defendants jointly and severally the sum of N1,992,255.16k [One million nine hundred and ninety two thousand, two hundred and fifty-five naira and sixteen kobo) being money had and received by the defendant for a consideration that has failed.”

Following Order 23 High Court (Civil Procedure) Rules 1998 of Imo State, applicable in Abia State, the plaintiff applied to have the writ placed under the undefended list. The plaintiff accompanied the application with an affidavit and the learned trial Judge placed the plaintiff’s claims under the undefended list.

By an ex-partemotion dated the 8/11/1993, the plaintiff successfully obtained leave of the trial court to serve the writ of summons and all other relevant court processes on the defendants by substituted means, that is to say, by “pasting same at the door of the office of the defendants at No. 102 School Road Aba, or by delivering same on any adult employee of the 2nd defendants at the office of the 2nd defendant at No. 102 School Road, Aba.” On the 23rd November 1993, a bailiff of the High Court, Aba deposed to an affidavit of service on the defendants as follows:-

“Make Oath and say that on the 23rd day of November, 1993 at 11.30 a.m, I pasted upon the defendant’s doors the writ of summons/statement of claim, a true copy whereof hereunto annexed issued out of this court, High Court Registry, Aba upon the defendant by pasting the same personally to the defendants’ address No. 102 School Road, Aba. ....”

The return date earlier ordered by the court was 7/12/1993. It was however on the 16/12/1993, that the plaintiff moved the trial court that since the defendants were not in court, to enter judgment in favour of the plaintiff.

The trial Judge granted the prayer and entered judgment in favour of the plaintiff. The plaintiff subsequently applied for the execution of the judgment and on Friday, 7th January 1994, the execution was levied on the defendants’ properties in the presence of the plaintiff accompanied by the court bailiffs and several policemen.  After execution, the defendants filed an application in the court of trial seeking to set aside the judgment and the execution, claiming that they were never served with the writ of summons and that they only became aware of the suit when the writ of fifa was served on them.

The affidavit in support of the motion sworn to by the 1st defendant Kalu Mark showed by paragraph 4 that the defendants were not served with the originating summons whatsoever, and that there was no pasting of the writ of summons at their office at any time. The claim was completely denied and the 1st defendant went on to explain the circumstances leading to their joint venture and how the matter was mutually settled and terminated. The plaintiff filed a counter-affidavit in opposition to the motion wherein by paragraph 5 of the said counter- affidavit he showed that the defendants were served with the originating summons by pasting the same on the door of their office at No. 102, School Road, Aba and a copy of the affidavit of service sworn to by the bailiff was attached to the counter-affidavit. After the hearing of the application in his ruling delivered on the 20/l/1990, the learned trial Judge refused the application. The defendants felt unhappy with the turn of events, they filed a notice of appeal against the ruling.

The Court of Appeal in its consideration of the issues placed before it in its judgment delivered the 6/3/1997 dismissed in its entirety the defendants’ appeal. The court affirmed the trial court by holding (1) a judgment obtained under the undefended list procedure cannot be set aside except by way of an appeal. (2) permitting litigant to challenge affidavits of service by bailiffs or other officers of the court would open up a floodgate of cases and (3) that the learned trial Judge had sufficient materials before him to resolve the conflict in the parties’ affidavits in relation to the question of service of the writ of summons without the need to call for oral evidence.

The defendants (hereinafter referred to as the appellants and the plaintiff as the respondent) still felt disgruntled with the judgment of the Court of Appeal and have now appealed again to the Supreme Court.