(Supreme Court, December 2016)

APPEAL NO: SC.83/2007

Areas Of Law:

APPEAL, COURT, FAIR HEARING, LANDLORD AND TENANT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

Summary Of facts

The Defendant/Appellant was a yearly tenant occupying a floor in the house of the Plaintiff/Respondent at Imo State. The Plaintiff/Respondent claimed that the Defendant/Appellant was in arrears of rent for three years and has refused to pay despite all demands made for the sum.

The Plaintiff/Respondent then instituted an action against the Defendant/Appellant to recover possession of the premises, arrears of rent, damages for breach of tenancy agreement and mesne profits. On being served with the writ of summons and statement of claim, the Defendant/Appellant entered a conditional appearance but did not file a statement of defence.

Thereafter the Plaintiff/Respondent filed a motion for judgment in default of defence to which the Defendant/Appellant did not file a counter-affidavit but rather filed a notice of preliminary objection contesting the jurisdiction of the trial court to entertain the suit on the ground that no proper service was made on him of the Writ of Summons.The motion for judgment in default of defence came up for hearing and the Defendant/Appellant informed the Court that he had filed a notice of preliminary objection which was found not to have been served so the trial court allowed the Plaintiff/Respondent to move his motion for judgment.

On the motion being moved, the Defendant/Appellant applied for an adjournment stating that he was not ready to make a reply to the motion. The trial court refused the application for adjournment and adjourned for judgment. The Defendant/Appellant thereafter filed some motions to stop the delivery of the judgment which motions the Court subsequently obliged. The Defendant/Appellant then moved a third motion applying for the suit to be dismissed on the ground that the writ of summons was not personally served on him.

The court dismissed the application and granted the prayers of the Plaintiff/Respondent except for damages. Aggrieved with the decisions of the trial court, the Defendant/Appellant appealed to the Court of Appeal which also dismissed the appeal.

Dissatisfied with the decisions of the lower court, the Defendant/Appellant has appealed to the Supreme Court.

Held:
Appeal Dismissed

Issue For Determination

    Whether the learned justices of the Court of Appeal were right in law when they held that the Appellant produced nothing to rebut the presumption of personal service on him raised by the bailiff’s affidavit of service.

    Whether the learned justices of the Court of Appeal were right in law when they held that the trial court did not breach the right to fair hearing of the Appellant.

Rationes

AFFIDAVIT EVIDENCE –THE RULE ON AFFIDAVIT EVIDENCE
“In the case of Maja v Samouris(2002) 3 SCNJ 29 at 49, this Court restated the law on affidavit evidence as cited above and that the court ought not to act on an affidavit bereft of facts showing the source of information of the deponent where he was not deposing from personal knowledge and that is the situation in this instance.”PER M.U. PETER –ODILI, J.S.C

PRINCIPLE OF FAIR HEARING – BASIS OF THE PRINCIPLE OF FAIR HEARING
“It is to be noted that the principle of fair hearing is not such as could be called up in the abstract and at the whim of a party just like a magician producing a pigeon from his breast pocket. It is a serious fundamental rule of natural justice which must be based on rock solid facts before the Court and available to one who has satisfied the conditions of being heard.   This is because if that party has not satisfied the conditions required for hearing his case, the Court will not be competent to hear him, he is not qualified for the right to be heard. The Court just cannot give a party the right to be heard where the right does not exist. See Carew .v. Oguntokun(2011) All FWLR (Pt. 568) 895 at 918 – 919;Apatira v Lagos Island L.G.C. (2006) All FWLR (Pt. 328) 755 at 767; Chime v Ude(1996) 7 SCNJ 81 at 91; Jonason .v. MOH Ltd 7(2002) 10 SCNJ 1 at 11”.PER M.U. PETER –ODILI, J.S.C

RULES OF COURT – WHETHER A PARTY WHO BREACHES THE RULES OF COURT CAN HIDE UNDER THE CLOAK OF INTEREST OF JUSTICE TO EXCUSE SAME
“Again to be said is that the interest of justice cannot be used to excuse a flagrant breach the rules of court and the party has himself to blame and cannot dump the fault at the doorstep of the court when by his own action or inaction he exhibited a disregard of the rules of Court.”PER M. U. PETER –ODILI, J.S.C

CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – IT IS NOT THE DUTY OF AN APPELLATE COURT TO INTERFERE WITH THE CONCURRENT FINDINGS OF FACTS BY THE LOWER COURT
“It is settled law that this Court does not make a practice of interfering with concurrent findings of facts by the lower courts except on exceptional circumstances which must be raised and established by the appellant challenging the said findings.”PER. W.S.N.ONNOGHEN, J.S.C
CONCURRENT FINDINGS OF FACTS – CIRCUMSTANCES IN WHICH AN APPELLATE COURT MAY INTERFERE WITH THE CONCURRENT FINDINGS OF FACTS BY THE LOWER COURT
“The circumstances in which this court can or may interfere with concurrent findings of facts by the lower courts include, but not limited to:
(a)    Where the said findings is not supplied by evidence on record or perverse.
(b)    When it is contrary, either procedural or substantive etc.”
–    PER W.S.N.ONNOGHEN, J.S.C

AFFIDAVIT OF SERVICE – ESSENCE OF AN AFFIDAVIT OF SERVICE
“It is settled law that an affidavit of service by a bailiff is prima facie evidence of service and also that prima facie evidence is one which, if uncontradicted, is sufficient to sustain the issue it asserts.”PER W.S.N.ONNOGHEN, J.S.C

BREACH OF FAIR HEARING – WHETHER A PARTY WHO CHOOSES NOT TO REACT UPON BEING SERVED, CAN ACCUSE THE COURT OF A BREACH OF HIS RIGHT TO FAIR HEARING
“It is settled law that a party served with a writ of summons and Statement of Claim in a matter against him and chooses not to react, cannot later turn round to accuse the court of a breach of his right to fair hearing if the court proceeds, in the circumstance, to hearing and determine the matter”.PER W.S.N.ONNOGHEN, J.S.C

RIGHT TO FAIR HEARING –DUTY OF THE COURT AS REGARDS THE RIGHT TO FAIR HEARING OF PARTIES
“It is not the duty of the court to compel a party duly served with the originating processes to defend the action, where he has no such a desire. All that is required of the court is to create and maintain an enabling environment for parties to exercise or take advantage of their right to fair hearing in any proceeding before it.”PER W.S.N.ONNOGHEN, J.S.C

SERVICE OF AN ORIGINATING PROCESS –RATIONALE FOR SERVICE OF AN ORIGINATING PROCESS
“There is no doubt that the service of an originating process, such as the writ of summons in the instant case, is fundamental and goes to the root of the court’s competence to entertain the cause or matter. The object of service is to give the defendant notice of the case against him and to afford him an opportunity, if he so desires, to defend the claim. The effect of failure to serve an originating process is that the entire proceedings are liable to be declared a nullity. See: Okoye Vs C.P.M.B. (2008) 15 NWLR (Pt.1110)335; Kida Vs Ogunmola (2006) 13 NWLR (Pt-997) 377; Obimonure Vs Erinosho (1966) 1 ALL NLR 250; Skenconsult(Nig.)Ltd Vs Ukay (1981) 1 SC 6 @ 26.”PER K.M.O. KEKERE-EKUN, J.S.C

DEFECTIVE SERVICE – WHETHER A DEFECT IN SERVICE OF A WRIT CAN RENDER THE PROCEEDINGS VOID
“However, where the writ is valid but there is a defect in service, such defect is treated as an irregularity, which will not, ipso facto, render the proceedings void. The defective service may be set aside. See: Duke Vs Akpabuyo LG. (2005) 19 NWLRPt.959) 130; Adegoke Motors Ltd. Vs Adesanya & Anor.(1989) 3 NWLR (Pt.109) 250 @ 270; Owners of the MV Arabella Vs NAIC (2008) 11 NWLR (Pt.1097) 182.”PER K.M.O. KEKERE-EKUN, J.S.C

AFFIDAVIT OF SERVICE –STATUS OF AN AFFIDAVIT OF SERVICE DEPOSED TO BY THE COURT BALIFF
“Where there is a challenge to the service of an originating process, the affidavit of service deposed to by the Court Bailiff is prima facie evidence of such service. It is not conclusive proof however. It raises a presumption that is rebuttable by credible evidence to the contrary. This court in the recent case of Ahmed Vs Ahmed & ors. (2013) LPELR — SC.279/2012 held that a person challenging the service of an originating process on him must depose to a counter affidavit denying service which must also contain credible facts to rebut the averments in the affidavit of service. A bare denial of service without more, is insufficient.

See also: UkoVs Ekpenyong(2006) ALL FWLR (Pt.324) 1927@1950 E – H.”PER K.M.O. KEKERE-EKUN, J.S.C

STATUTES REFERRED TO:
Evidence Act 2011
Imo State High Court (Civil Procedure) Rules 1988