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TIMOTHY TOR ABUTU V. LUCKY ONYEDIMA

(2002) JELR 53196 (CA)

Court of Appeal  •  CA/J/178/99 MONDAY, 8TH JULY, 2002  •  8 Jul 2002  •  Nigeria

Coram
ALOMA MARIAM MUKHTAR, JCA (Presided) IBRAHIM TANKO MUHAMMAD, JCA (Read the Lead Judgment) IFEYINWA CECILIA NZEAKO, JCA

Appearances
Mr. T. I. Igirgi - for the Appellant . -*- Mr. G. I. Enebeli - for the Respondent. -*- MUHAMMED, JCA: (Delivering the Lead Judgment): By a writ of summons taken from Benue State High Court of Justice holden at Makurdi, the plaintiff, and as per his paragraph 13 of the statement of claim made the following claim against the defendants: -*- “13. WHEREOF; the plaintiffs claim against the defendant jointly and severally is for the sum of two hundred and fifty thousand Naira (N250,000.00) being special and general damages suffered by the plaintiffs as a result of the accident. -*- PARTICULARS -*- Cost of repairs (including buying spare parts less N20,000.00 deposited N100,160.00 -*- 2. Loss of earnings from the vehicle as from 17th Nov. 1997 to 4th February, 1998 -*- at N1,700 each day for 74 days N125,800.00 -*- 3. General Damages N 24,000.00 -*- Grand Total N250,000.00 -*- The background facts giving rise to this case are as contained in the -*- plaintiff’s statement of claim which was the only pleading filed before the -*- lower court (as no statement of defence was filed by the defendant). The 1st plaintiff is a transporter who owns a vehicle (Datsun Nissan, Saloon) with No. AA 23 MKD used for commercial purpose as a taxi from which he realises between N1,500.00 to N2,000.00 daily. The 2nd plaintiff was at -*- the time material to this suit the driver to the said vehicle. The defendant was the driver owner of a Toyota Carina Car with No. A A 362 JAL, Taraba -*- as at 17th November 1997. The 2nd plaintiff stated in his averment that on the 17th December 1997, he loaded his vehicle from Wurukum Motor park and on his way to Gboko from Makurdi near Amu, after the Airforce Base Junction, the defendant driving his car coming from Gboko to Makurdi at a -*- very high speed (over speed) and while at a bend, negligently and without -*- due care and attention oversteered to his lane, violently colliding with plaintiff’s vehicle smashing it by the driver side causing extensive damages. The defendant accepted liability and agreed to repair the first plaintiff’s -*- vehicle. He deposited the sum of N20,000.00 being advance payment made A -*- to first plaintiff. He agreed to make further payments but neglected or refused to do so. The plaintiff further averred that he was repairing the car at Makurdi and the estimated cost of the repairs was N120,160.00. The plaintiffs have suffered loss of earnings as a result of the accident. The vehicle was out of -*- use since the accident and the driver (2nd plaintiff) was out of business and finds it difficult to feed. B -*- The defendant did not file any memorandum of appearance or statement of defence. From the record, he never put up appearance in the matter. An ex-parte motion for an order of substituted service on the defendant was filed on the 19/3/98. It was moved and granted by the learned trial Judge on the 27/3/98. Substituted service of the summons and other C -*- court processes was effected on the 9th of April, 1998 on the defendant by -*- pasting same at No. 25D Akume Terhemba Street, new GRA Gboko the residence of the defendant. After the expiration of the statutory period for filing of defence, the plaintiff’s counsel filed a motion for judgment. The motion was said to have been served on the defendant together with a hearing -*- notice against 29/7/98. After taking the motion for judgment, the learned D -*- Judge adjoured the case for judgment. Judgment was subsequently delivered after hearing witness for the plaintiffs. The plaintiffs’ claim succeeded and a total award of N215,440.00 was made by the trial court in favour of the plaintiffs. -*- Dissatisfied with the judgment, the defendant as appellant, filed a E -*- notice of appeal to this court. Two grounds of appeal were set out. -*- The appellant and the respondents filed their respective briefs of argument. Learned counsel for the appellant identified the following issues for our determination: -*- “i. Whether in the circumstances of this case there was proper service of the process of the court in suit No. MHC/16/98 F -*- effected on the appellant. -*- Whether a reference to documents attached to an affidavit as ‘Annextures’ instead of ‘Exhibits’ is a fundamental or a mere irregularity considering the provisions of the Benue State Civil -*- Procedure (Edict) Rules 1988. G -*- Whether it amounts to hearsay evidence for a 3rd party to -*- depose to an affidavit of facts relayed to him by another person which he believes to be true.” -*- Learned counsel for the respondents formulated the following issues: “(a) Whether or not the appellant was right to have filed a brief -*- based on proposed additional grounds of appeal which has H -*- not been granted. -*- Whether the marking of a document (certified true copy) attached to an affidavit as ‘annexture’ instead of ‘exhibits’ which same documents the other party defendant/appellant) referred to as ‘exhibits’ amounts to fundamental or a mere procedural irregularity considering the provisions of the Benue State High Court (Civil Procedure Rules) Edict, 1988. Whether the marking of the document(s) as annextures instead of exhibits affected the content of the documents or occasional (sic) any miscarriage of justice or affected the affidavits of -*- service duly sworn before a Commissioner for Oath. -*- Whether in the circumstances of this case there was proper service of the process of the court in suit No. MHC/16/98 effected on the defendant/appellant. (e) Whether it amounts to hearsay evidence for a 3rd party to depose to an affidavit of facts relayed to him by another person which he believes to true.” -*- On the 18/04/01 learned counsel for the respondent filed a notice of preliminary objection to the competence of the appellant’s brief. Though learned counsel for the respondent was in court on the hearing date, he -*- failed to move his preliminary objection. The preliminary objection is -*- deemed abandoned and is hereby struck out. See: N.B.N. Ltd. vs. Tasa Ltd. -*- (1996) 8 NWLR (Pt. 468) 511; Kenlink Holdings Ltd. vs. R. E. Investment -*- Ltd. (1997) 11 NWLR (Pt. 529) 438; Alhaji vs. Ma’ji (2002) FWLR (Pt. -*- 127) 1122,(2002) 4 NWLR (Pt. 756) 46. -*- In the arguments proffered in the brief, learned counsel for the appellant submitted on issue No 1, that by the Rules of Court, service of process is a condition precedent to the trial of an action. Court processes were said to have been served on the appellant by means of substituted -*- service. Learned counsel argued that there was no legally admissible evidence that the order was duly effected. The only evidence which the -*- court below relied on to hold that service was effected were annextures ‘B’ -*- and ‘C’ which, according to appellant’s counsel could not be relied upon as they did not comply with Order 9, rule 9 of the Benue State High Court (Civil Procedure) Edict, 1988. It was further argued that there was no cogent evidence to support the finding that court processes especially annexture D -*- which is an affidavit of service contains no information on the face of it to show where the substituted process was done. This requires that the place -*- where the service was done should be stated. He relied on Aina vs. Oba (1986) 2 NWLR (Pt. 22) 316 at 330. The affidavit must also contain sufficient details to prove that service was duly effected. Okesuji vs. Lawal (1991) NWLR (Pt. 170) 861. Learned counsel for the appellant submitted that the -*- court below was in error when it relied on annextures ‘B’ ‘C’ and ‘D’ to -*- hold that the evidence of service has been rebutted when the said annextures, particularly annexture ‘D’ was defective same having not been signed or marked by the deponent as required by section 90(f) of the Evidence Act. -*- The court also mistook the address of counsel to be the address of appellant A whereas knowledge of address does not meet the requirement of service at law which except in certain cases must be personal. The lower court was in error when it refused to set aside the order. He cited the case of Obimonure -*- vs. Erinosho (1666) I.U. MCR 250. -*- Learned counsel for the respondent argued this issue of non-service under his issue (d). The submission of learned counsel is that proper services B -*- known to law were effected on the appellant as shown in the three affidavits of service. Order of service was granted by the lower court pursuant to Order 8, rule 5(a) of the Benue State High Court Rules, 1988. Learned counsel cited also the provision of Order 12, rule 5(a) of the same rules. He -*- argued further that signing of signature in affidavit of service is not C -*- mandatory. Production of affidavit of service is deemed to be good evidence -*- of service. -*- Let me observe that two grounds of appeal were set out in the notice of appeal contained in the last two pages of the printed record of appeal placed before this court. Below are quoted the two grounds shorn of their -*- particulars: D -*- “1. The trial court erred in law when it heard the substantive matter for determination without proper service of the proceedings of the court on the appellant. -*- 2. The trial court erred in law when it held that, -*- ‘....The evidence of service has therefore not been E -*- rebutted by the applicant’.” -*- It can be seen that both grounds were on service of the lower court’s processes on the appellant. I couldn’t trace any additional ground filed by the appellant as all motions filed to bring in additional grounds were withdrawn by the applicant and struck out. By looking at the issues -*- formulated by the appellant, it is only issue No. (i) that relates to these F -*- grounds. Issues (ii) and (iii) have no grounds to relate. It is the law that an issue that does not relate to any ground is liable to be struck out. Appellant’s issues (ii) and (iii) are accordingly struck out. Njoku vs. U.A.C. Foods (1999) 12 NWLR (Pt. 632) 557. Also, as there is no cross-appeal on the lower -*- court’s judgment of 7th December, 1998 and the ruling of 5th March, 1999, G -*- the respondent cannot formulate issues different from the ones formulated -*- by the appellant. Only issue (d) of the respondent’s issues relate to the aforesaid grounds. -*- Accordingly, respondent’s issues (a), (b), (c) and (e) are hereby struck out as they appear to be a proliferation. See: Ali vs. C.B.N. (1997) 4 NWLR -*- (Pt. 498) 192; Obaike vs. B.C.C. Plc (1997) 10 NWLR (Pt. 525) 435. H -*- On issue No 1 which is on service of process, I once had an opportunity of stating, inter alia, the following: -*- “I think the essence of all types of service of processes, whether -*- personal, through counsel or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of and be able to resist, if he may, that which is sought against him. It must therefore be a primary consideration to the court to be satisfied that service was in -*- fact effected. See: United Nig. Press Ltd. vs. Adebanjo (1969) -*- 1 ALL NLR 431; Odutola vs. Kayode (1994) 2 NWLR (Pt. -*- 324) 1 at page 21.” See Oko Memorial Farm Ltd. & Anor vs. -*- N.A. C.B. Ltd. (Unreported) No. CA/J/128/96 of 29/11/99. -*- I agree with learned counsel for the appellant in his submission that service of process by the Rules of Court, is a condition precedent to the trial -*- of an action. The provisions of Order 12, Rule 1 of the Benue State High Court (Civil Procedure) Rules, 1988 is, in this connection, very relevant. It provides: -*- “1. Service of writof summons, notices, petitions, pleadings, orders, summons, warrants and of all other proceedings, documents, or written communications of which service is required, shall -*- be made by sheriff, or a deputy sherff bailiffs, 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 a Judge in chambers otherwise direct. Provided that when a party -*- is represented by a legal practitioner, service of notices, pleadings, petitions order, summonses, warrants and of 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.” -*- However, where service as aforesaid could not, for some reasons, be -*- effected on the defendant, the rules further provide in Rule 5 of the same -*- Order that a substituted service may be ordered. It is on record that learned counsel for the plaintiff/respondent filed and moved a motion for an order of substituted service on the defendant/appellant. On 27/3/98, the learned trial Judge granted the relief sought and directed that the defendant/appellant -*- be served by process at No. 25DAkume Terhemba Street, New GRA Gboko, the last known abode of the appellant. Under Order 27, rule (2)(1) of the -*- lower court’s’s Rules, learned counsel for the appellant filed a motion on notice for an order giving judgment to the plaintiff. As the statutory period within which the defendant would file a statement of defence had expired and he did not file any, and as no counter-affidavit in response of the motion -*- was filed, the learned trial Judge directed plaintiff to proceed to prove his -*- claim as the claim was based on special damages. Evidence was led by the plaintiff. No appearance at all was put by the defendant. Judgment was given on 7/12/98 in favour of the plaintiff/respondent. The defendant/ -*- appellant on 4/2/99 moved his motion for setting aside the judgment, after A -*- extension of time was granted him by the lower court. His grouse was that he was not served with any process of the lower court (p. 64 of the record). In his considered ruling, the learned trial Judge dismissed the motion and refused to set aside his judgment. That was on the 5/3/99. Before arriving at -*- his ruling as aforesaid, the learned trial Judge made the following vital findings. B -*- “In proof of such service, the respondent has in his additional counter-affidavit annexed 3 affidavits of service, effected by pasting, on 3 different dates. According to these documents the writ of summons was served by pasting on 9/7/98, a hearing -*- notice and a motion on notice were served by the same process C on 24/7/98 and a hearing notice was again served on 16/10/ 98.” -*- It was found by the learned trial Judge as well that there was admission as to service by the appellant and that there was no mistaken address by the bailiff, who effected the substituted service on the residence of the appellant. -*- The learned trial Judge concluded: D -*- “The bailiffs have deposed in annextures B, C and D that these processes were duly pasted at the applicant’s house. This, by the provisions of Order 12, rule 28 is prima facie evidence of services. .... The evidence of service has therefore not been -*- rebutted by the applicant. I therefore hold that the applicant E -*- was duly served.” -*- Now, when an order for substituted service was sought, prayer 1 of that motion ex-parte gave the place of abode of the defendant/appellant as (No. 25D Akume Tsehemba Street, New GRA, Gboko). This fact was deposed to in paragraph 4 of the affidavit in support. I perused the annextures -*- mentioned above. Annextures B and C gave the place of service as No. 25D F -*- Akume Tesehemba Street, New GRA, Gboko. Annexture D did not mention the place of service. Part of ground 1 of the appellant’s grounds of appeal which was argued in issue No 1, was heavily relied upon by learned counsel for the appellant that annexture ‘D’ which was an affidavit of service -*- contained no information on the face of it to show where the substituted G -*- process was done and as an affidavit of service of process the law required -*- that the place where the service was done should be stated. I think, depending on the circumstance, it is the court that may direct the manner for a substituted service. See: Jay vs. Budd (1898) 1 QB 16. The court may order that service be effected - -*- by delivery of the document to some adult inmate at the usual H -*- or last known place of abode or business of the person to be served; or -*- by delivery thereof to some person being an agent of the person -*- to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary cause, through that agent or other person, come to the knowledge of the person to be served: by advertisement in the State gazette, or in some newspaper circulating within the juridiction; or (d) by notice put up at the principal court house of, or some other -*- place of public resort in the judicial division wherein the proceeding in respect of which the service is made is instituted, or at the usual or last known place of abode, or business, of the person to be served. -*- The lower court found that the substituted service of its processes were effected on the appellant in compliance with the rules of court. The lower court was quite right in my view as Order 12, rule 28 of the lower -*- court’s Rules provides that in all cases where service of any writ or document shall have been effected by a bailiff or other officer or 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 and the court shall -*- act upon it until the contrary is proved by the defendant. Exquisite Ind. Ltd. vs. Owners of M. V. Bacoliners 1-3 (1998) 5 NWLR (Pt. 549) 335. On failure of annexture ‘D’ to provide information on the face of it the place of service, I agree entirely with the learned trial Judge in his holding that: -*- “although annexure 2 did not indicate the address where the pasting was done, the bailiff who is indicated therein to have done the pasting is one Boniface A. Mtsor. It is however clear from paragraph 4 of the further affidavit that the said BonifaceA. Mtsor knows the residence of the applicant appellant.” -*- Learned counsel for the appellant should not have been unmindful -*- of the provision of Order 2, rule 1(i) of the lower court’s Rules which remedy -*- any omission as to mentioning of place, time, manner etc., which amounts only to mere irregularity. The rule states: -*- “(1) Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any -*- proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of -*- these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings, or any document, judgment or order therein.” -*- Thus, I am satisfied that the lower court has discharged the -*- responsibility placed on it by the law in respect of service of process. There was an uncontroverted proof of service on the appellant (the defendant) who failed to appear in court in response to the process after he has been -*- allegedly served. A -*- Issue No 1 is resolved in favour of the respondents. -*- As issue No (i) appears to be the only live issue upon which to determine the appeal, I have no reason to consider other issues which have collapsed and were struck out. Accordingly, I find no merit in the appeal -*- and same is hereby dismissed by me. I affirm the lower court’s judgment. -*- The appellant shall pay costs of N5,000.00 to the respondent. B -*- MUKHTAR, JCA: I have had the advantage of reading in advance the lead judgment delivered by my learned brother, Muhammad, JCA. I am in -*- full agreement with the reasonings and conclusion reached therein, that the C appeal lacks merit and ought to be dismissed. In this wise, I also dismiss the appeal and abide by the consequential orders made in the lead judgment. -*- NZEAKO, JCA: I have read in advance the leading judgment of my learned brother, Muhammad, JCA: D -*- I agree with him that this appeal is devoid of merit. I dismiss it with N5,000.00 costs to the respondent. -*- Appeal dismissed

Judgement

MUHAMMED, JCA: (Delivering the Lead Judgment): By a writ of summons taken from Benue State High Court of Justice holden at Makurdi, the plaintiff, and as per his paragraph 13 of the statement of claim made the following claim against the defendants:

“13. WHEREOF; the plaintiffs claim against the defendant jointly and severally is for the sum of two hundred and fifty thousand Naira (N250,000.00) being special and general damages suffered by the plaintiffs as a result of the accident.

PARTICULARS

1. Cost of repairs (including buying spare parts less------------ N20,000.00

deposited ---------N100,160.00

2. Loss of earnings from the vehicle as from 17th Nov. 1997 to 4th February, 1998 at N1,700 each day for 74 days ---------N125,800.00

3. General Damages------- N 24,000.00

Grand Total ----------------N250,000.00

The background facts giving rise to this case are as contained in the plaintiff’s statement of claim which was the only pleading filed before the lower court (as no statement of defenc…

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