Chief Hyacinth Mmaduagwu & Anor V. Dara Martins Ifeanyi & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. 

This is an appeal against the decision of the High Court of Anambra State, sitting at Nnewi (hereinafter referred as the Lower Court), delivered by Justice M. I. Onochie, J., on the 7th day of March, 2012.

The substantive suit was instituted by the plaintiffs/respondents vide a writ of summons dated and filed on the 11th day of October, 2010 wherein the plaintiffs/respondents sought ten (10) reliefs against the defendants/appellants. The reliefs include:
?A declaration that the purported selection of the 2nd Defendant by the 1st Defendant as the Igwe-Elect of Ukpor in Nnewi South Local Government Area of Anambra State is ultra vires, irregular and a violation of the customs, tradition and historical norms of Ukpor and is therefore null and void.?

Consequently, the 3rd and 4th defendants/appellants were duly served with the said writ of summons. However, the plaintiffs/respondents complained that they could not effect service of the said writ on the 1st and 2nd defendants/appellants as they alleged that the said defendants/appellants were

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evading service. Consequently, the plaintiffs/respondents filed a motion ex-parte on the 8th day of November, 2010 seeking for:
?AN ORDER FOR SUBSTITUTED SERVICE of the originating processes in this suit and subsequent processes in this suit on the 1st and the 2nd defendants afore-named (Chief H. Mmaduagwu & F. C. Onyimadu).?

The motion was granted by the Lower Court in the following terms:
?1. Leave is granted to the Applicant to serve the 1st and 2nd Defendants in this case by substituted means that is to say by posting all the processes meant for service on them at the entrance door of their respective country homes at Ukpor in Nnewi South Local Government Area.
2. Upon service being effected in the manner aforesaid, it shall be deemed as good service on the 1st and 2nd Defendants.?

Armed with the order of the Lower Court made above, the plaintiffs/respondents in company of the Lower Court?s bailiff, effected service on the said 1st and 2nd defendants/appellants in accordance with the order of the Lower Court. Subsequent thereto, the said 1st and 2nd defendants/appellants filed a motion on notice on

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the 21st day of February, 2011 whereby they sought for the following orders:
?1. An order nullifying or setting aside the writ of summons issued in this suit for its fundamental defect or its non-compliance with the rules in beginning the proceedings and consequently striking out the suit for being incompetent and for lack of jurisdiction to adjudicate on it.
2. An order setting aside the order of substituted service granted on 8th November, 2010 on ground of crassa suppressio veri together with any purported service allegedly effected on the basis of same.?

The ?grounds of the application? were stated therein and the said motion on notice was accompanied with affidavits, exhibit and written address in support. The plaintiffs/respondents on their own, filed counter affidavit and written address in opposition to the motion. This prompted the defendants/appellants to file further affidavits; reply address and further written address in support of the said motion on notice. After due consideration of all the processes filed before him, the learned trial judge refused to grant the defendants/appellants? application.<br< p=””

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The 1st and 2nd defendants/appellants being dissatisfied with the said ruling appealed against the same before this Court upon the following grounds of appeal. The said grounds of appeal are reproduced hereunder as follows:
?1. Error in Law
The learned trial judge erred in law when he refused or failed to apply Order 5 Rule 1 Sub Rule 1 of the High Court Civil Procedure Rules, 2006 of Anambra State to nullify, set aside or strike out the writ of summons in this suit or proceedings for non-compliance with the rules in beginning the proceedings/action and/or for want of competence and/or jurisdiction.
2. Misdirection in Law
The learned trial judge misdirected himself in law when he failed to rely on the unchallenged or further affidavit evidence of 10th October, 2011, of the 1st appellant in holding that the appellants as the 1st and 2nd defendants at the lower Court reside in Lagos not at Ukpor town and hence Lagos is their proper place or address for service for which the address of service endorsed on the writ would be set aside as being illusory, fictitious or misleading as provided in Order 4 Rule 8 of the High Court

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(Civil Procedure) Rules, 2006 of Anambra State.
3. Error in Law
The learned trial judge erred in law when he relied on the inconsistent or contradictory evidence of the respondents as plaintiffs at the Lower Court below and the bailiff in holding that the appellants were served the originating processes especially the writ of summons.?

Henceforth in this judgment, the plaintiffs would be referred to as the respondents, while the defendants shall be called the appellants.

In accordance with the rules of this Court, the parties duly filed their respective briefs of argument. The appellants? brief of argument was prepared by Chief I. M. Anah and M. C. Onyekwelu, Esq. The said brief of argument was filed on the 12th day of September, 2012.

?The respondent?s counsel on his own part and on the 29th day of April, 2014 filed respondents? notice of preliminary objection. The said preliminary objection challenged ground one of the grounds of appeal. Arguments which pertained to the said preliminary objection and the respondents? response to the appeal are contained in the respondents? brief of

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argument filed on the 9th day of October, 2012. The said brief of argument was prepared by Nwafili Okwuosa Esq. In reply to the respondents? preliminary objection and brief of argument, the appellants filed a reply brief on the 23rd day of October, 2012.

The respondents? preliminary objection was predicated on two (2) grounds, which are:
?(a) Ground one of the Notice and Grounds of Appeal is incompetent on account of its failure to attack/challenge the very basis (ratio decidendi) of the trial Court?s decision; and
(b) Ground one of the Notice and Grounds of Appeal is incompetent on account of introducing fresh issue/point on appeal, without the leave of the Court of Appeal.?

Now to the issues as formulated by the learned counsel for the parties respectively. The learned counsel to the appellants formulated three (3) issues for the determination of this appeal. The issues are as follows:
?2.1 Whether in view of the provisions of Order 3 Rule 3, Order 6 Rules 2 (1), and (3), and Order 5 Rule 1 (1) of the Anambra State High Court Civil Procedure Rules, 2006, the writ of summons beginning proceedings

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at Court below exhibited as exhibit 1 was competent.
2.2 Whether the learned trial Court was right when he failed to rely or attach any weight to the unchallenged further affidavit evidence of 10th October, 2011 filed by the 1st appellant before and coming to the conclusion that the appellants reside in Ukpor and therefore should have their address of service of Court process in Ukpor and not Lagos.
2.3 Whether in view of the material contradictions contained in the evidence of the respondents and the bailiff in proof of service on the appellants, the learned trial Court was right in holding that the appellants were duly served with the originating process.?

The learned counsel for the respondents in the same vein formulated three (3) issues in the respondents? brief of argument for determination of this appeal. The issues are reproduced below:
?4.2 Whether the decision of the trial Court dismissing the application to set aside the writ of summons in the Court?s file is sustainable.
4.3 Whether the affidavit evidence of the 1st appellant dated 10/10/11 was properly discountenanced, as to non-service of the

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originating processes on the Appellants by substituted means, the deponent having failed to present himself for oral examination, as ordered by the Court, to resolve conflict in affidavit depositions.
4.4 Whether, in view of the lapse of time, the inexactitudes in the bailiff?s recollections of the mode and exact circumstances of his effecting substituted service of the originating processes on the Appellants, the learned trial Court was right in upholding the services.?

In accordance with the established principles governing the hearing of appeals and rules of this Court; the preliminary objection of the respondents would be considered first.

ARGUMENTS ON PRELIMINARY OBJECTION.
The learned counsel to the respondents/objector submitted ?that a competent appeal must address or attack the ratio decidendi of the decision of the trial Court, and not the figment of an appellant?s imagination.? He referred us to the case of Okoye v. N. C. F. Ltd. (1991) 6 NWLR (Pt. 199) 501; Unongo v. Akume (2004) 11 WRN 36 @ 44. And Osahon v. F. R.N. (2003) 16 NWLR (Pt. 845) 89. The learned counsel contended that the Lower

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Court?s ruling affirming the competency of the writ of summons being objected to before it, was based on the copy of the writ in its file and not the one attached by the appellant as exhibit in company of their motion to set aside the writ. He continued that ground one of the appellants? grounds of appeal has failed to ?attack? the basis of the Lower Court?s decision, thus the said ground is incompetent and liable to be struck out. He therefore urged this Court to so do. He referred us to the case of Ogumokun v. Military Administration of Osun State (1999) 3 NWLR (Pt. 594) 261.

Additionally, the learned counsel to the respondents/objectors submitted that fresh issues cannot be raised on appeal, except with the leave of the Court. The learned counsel contended that the appellants did not at any time complain or canvassed any argument on the point, that the writ of summons by which this suit was instituted was neither signed by the respondents nor their learned counsel. That, the only point duly raised was that the said writ of summons was not signed by the Lower Court?s registrar. The learned counsel thereby submitted

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that the assertion that neither the respondents nor their counsel signed the writ of summons is a new issue; being raised as ground one of the appellant grounds of appeal without the requisite leave of either the Lower Court or this Court. Thus, the issue goes to no issue and liable to be struck out. He relied on the case of Kadzi International v. Kano Tannery (2004) 12 WRN, 131 @ 136.

The learned counsel to the appellants in response submitted that the respondents? preliminary objection was not properly raised as the required three (3) days? notice or any notice, whatsoever was not given to the appellants in compliance with the mandatory provision of Order 10 Rule 1 of the Court of Appeal Rules, 2011. He therefore urged this Court to discountenance the preliminary objection for being incompetent and for not complying with the mandatory rules of this Court. He relied on the case of Williams & Ors. v. Hope Rising & Voluntary Fund Society (1982) 1 All NLR 1.

?Furthermore, he argued that the first limb of the said preliminary objection is misconceived. He contended that one of the grounds of the appellants? motion at the Lower

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Court was the inherent defect in the writ of summons, which was clearly exhibited. Hence, all through the period of hearing the motion, there was only one writ of summons exhibited (which is the said defective writ) and that refusal of their prayer on this ground amounts to total denial of the grounds, thus any appeal brought on that ground is competent. In addition, the learned counsel submitted that the Lower Court (with due respect) erred when it had recourse to another writ of summons which was not exhibited before it in reaching its decision, thereby denying the appellants of their guaranteed right to fair hearing. He referred us to the case of Victino Fixed Odds Ltd. v. Ojo (2010) 8 NWLR (Pt. 1197) S.C. 486 and Skye Bank Plc v. Akinpelu (2010) 8 NWLR (Pt. 1198) 197. He argued further that it is fraudulent or mischievous if indeed a party filed a writ of summons and then served a different version of the writ on other parties. Finally on this point, the learned counsel submitted that ground one of the grounds of appeal summed up all the complaints against the decision of the Lower Court and the reasons for such decision adduced by the Lower Court in

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dismissing the appellants? application. He therefore urged this Court to discountenance the first limb of the preliminary objection for being misconceived.

?On the second limb of the preliminary objection which deals with the complaint that the appellants are raising a fresh issue on appeal. The learned counsel to the appellants submitted the respondents complaint on this ground is also misconceived. The learned counsel contended that the appellants listed Order 6 of the High Court Civil Procedure Rules of Anambra State, 2006 as one of the grounds for their objection at the Lower Court. The learned counsel maintained that the said grounds of objection borders on the non-compliance with the issuance of the writ of summons in accordance with Order 6 which prescribes the mode of issuing originating process. He further contended that the Lower Court at page 60 of the record of appeal whereat the learned trial judge made a finding, which pertained to this ground. Thus, the appellants have the constitutional right to appeal against such finding/decision. He therefore urged this Court to discountenance the preliminary objection on the competence of ground

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one of appeal and proceed to consider the appeal on its merit.

It is now a well established principle of this Court that preliminary objection can be brought in two (2) ways:
1. By separate notice of preliminary objection; or
2. By raising the preliminary objection in the brief of argument.
A party is at liberty to adopt either of the above modes, provided the attention of the Court is brought or drawn to the said preliminary objection and it is argued or moved before the substantive appeal is taken or heard. See Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166; (2003) LPELR ? 2269 and Magit v. University of Agric. Makurdi (2008) 19 NWLR (Pt. 959) 211; (2005) LPELR-1816. In the instant case, the respondents adopted the second modes and subsequently filed a separate notice on the 29th day of April, 2014. The said preliminary objection was properly raised and argued before this Court. Thus, the contention of the counsel for the appellants on the incompetence of the said preliminary objection is misplaced and accordingly discountenanced. It is a trite principle of law, that ground or grounds of appeal must not only challenge the decision

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of the Lower Court but of necessity attack also the ratio upon which the decision was arrived at. This position has been reiterated by this Court in the case of Punch Nigeria Ltd. v. Jumsum Nigeria Ltd. (2010) LPELR-4887, per Adzira Gana Mshelia. JCA, while quoting his Lordship, Karibi-Whyte JSC in Saraki & Ors. v. Kotoye (1992) 3 N. S. C. 331, stated as follows:
?It is a well established proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.?

I have carefully examined and analyzed the ruling of the learned trial judge delivered on the 7th day of March, 2012, and found that the basis upon which the Lower Court ruled in favour of the writ of summons was that the copy of the writ in the Courts file was duly endorsed, in compliance with the requisite rules of the Court. Also, having carefully examined all the processes on record, the ruling of the Lower Court, it is also my firm viewpoint that one of the grounds of the appellants motion to set aside the writ of summons was to the

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effect that the said writ was not endorsed by the registrar of the Lower Court in accordance with Order 6 of the High Court Civil Procedure Rules (supra); and lack of proper service on the 1st and 2nd appellants. I found nowhere, where the appellants contended that the said writ was also not properly signed or signed at all by the respondents in accordance with Order 6 Rule 2 (3) of the High Court Civil Procedure Rules, supra. In the light of this finding, I hereby agree with the learned counsel to the respondents that ground one of the appellants? grounds of appeal, did not relate or challenge the ratio decidendi of the decision of the Lower Court and also amounts to raising a fresh issue before this Court. Thus, prior leave of this Court not having been sought before the issue was raised, ground one of the grounds of appeal and issue formulated therefrom are hereby discountenanced and accordingly struck out. In this circumstance, this preliminary objection succeeds and it is accordingly upheld by me.

?Having resolved the respondents? preliminary objection in the manner outlined above, I will therefore proceed in my consideration of the

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substantive appeal based on the surviving grounds of appeal and issues formulated therefrom. I have carefully examined all the processes on record, the ruling of the Lower Court, grounds of appeal, issues formulated from the grounds of appeal and arguments in support, and I am of the firm view point that the main issue that calls for determination, based on the surviving grounds of appeal is:
1. Whether the 1st and 2nd defendants/appellants could be held to have properly been served with the requisite Court processes.

ARGUMENT ON ISSUE.
The learned counsel to the appellants submitted that where the facts contained in affidavit evidence are not challenged or controverted by way of counter affidavit, the Courts are duty bound to accept the facts contained therein and such uncontroverted facts are deemed admitted by the defaulting party. He referred us to the case of Onyekweli v. INEC. (2008) 14 NWLR (Pt. 1101) 317. The learned counsel also contended that the 1st appellant gave an uncontradicted and uncontroverted evidence that he resides in Lagos, and not in Ukpor as deposed by the respondents, thus, the service of the Court?s

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processes ought to be effected on him at his place of residence in Lagos. It was further argued that the parties being outside jurisdiction of the Lower Court, the writ of summons to be served on them ought to be properly endorsed in compliance with Order 3 Rule 9 of the Anambra State High Court Civil Procedure Rules, and Sections 97 and 98 of Sheriffs and Civil Process Act. Furthermore, the learned counsel contended that the appellants? place of residence is well known to the respondents, but they intentionally suppressed the facts in order to obtain the order for substituted service. Again, the learned counsel contended that the learned trial judge did not specifically request that the 1st appellant should submit himself for oral examination, thus, the learned trial judge (with due respect) erred by failing to attach probative value to the affidavit of the 1st appellant for failing to submit himself for oral examination.

?In addition, the learned counsel contended that the evidence of the bailiff and the respondents are materially contradictory as to the facts of service, thus, he urged this Court to disregard or discountenance them. He relied on

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the cases of Okeke v. Ejezie (2011) All FWLR (Pt. 603) 1817; and Stephen v. State (2009) All FWLR (Pt. 491) 962, among others.

The learned counsel to the respondents in response, contended that the 1st appellant?s affidavit was materially controverted or contradicted in all material respect. He further contended that the respondents? counter-affidavit to the appellants? motion has specifically stated the place of residence of the 1st and 2nd appellants, hence, there was no need to file further counter-affidavit to the appellants further affidavit. He continued by arguing that there are both documentary and admitted affidavit evidence that support the case of the respondents, hence, making it a surplusage to seek further counter-affidavit in denial of the appellants? further affidavits. The learned counsel in agreeing with the learned trial judge, submitted that there is no provision in the rules of the Lower Court that service of Court?s process must be effected on the appellants at the place they ordinarily reside. He continued that the provision exists for personal service or substituted service, where personal service

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could not be effected. He further contended that there is an irrebutable presumption that the 1st and 2nd appellants reside in villages where the substituted service was ordered, thus, since the essence of service was to bring notice of the suit to the parties, the order of substituted service was therefore validly made. Finally on this point, the learned counsel submitted that there is presumption of service of originating process where a defendant files a memorandum of appearance, and counsel appeared ?under protest?. He referred us to the cases of Odu?a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; and Stabilini v. Ejike (2001) 35 WRN, 136 @ 138.

Again, the learned counsel contended that the Court?s bailiff who does not hail from the senatorial district within which the service was effected (?Ukpor Community?) could not be held to be capable of giving a vivid description of the area without some mix up especially on the fact that said service was effected over a year before he was called to give oral evidence in order to settle the conflicts in the numerous affidavits. He further contended that the

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inconsistency (if any) has been explained by the 1st respondent. He also maintained that the supposed contradictions did not in any way or by any means affect the material evidence of the bailiff, especially as it relates to issue of pointer. He continued by submitting that minor discrepancies are allowed and if the evidence of the witnesses are all accurate in relation to an event; that Courts are advised to be cautious or wary of such dove tailed evidence. The learned counsel submitted finally on this point by emphasizing that, there is no evidence on record, to rebut the fact that the 1st and 2nd appellants were not properly served in accordance with the order of the Lower Court, thus, it is deemed in law that the process was effectively and properly served on them.

The learned counsel to the appellants in the appellants? reply brief submitted that the irrebutable presumptions of law that an Igwe-elect by virtue of Section 4 (e) of Traditional Rulers Law of Anambra State, 1994 must be ordinarily resident within the community where he is expected to be presiding over cannot be invoked in favour of the respondents, because they filed the instant

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suit challenging his appointment and recognition. And that, their argument in this respect amounts to approbating and reprobating which is not allowed in law. He referred us to the case of Mobil Producing (Nig.) Unltd v. Monokpo (2003) 18 NWLR (Pt. 852) SC 316. Again, the learned counsel submitted that the fact that the bailiff effected the service a year before he was called to give oral evidence does not obviate the fact that he failed to specify in his affidavit of service the person who served as his pointer. He further maintained that the evidence of 1st and 5th respondents together with that of the bailiff are materially contradictory as to who acted as pointer, thus, casting a huge doubt as to whether there was service of the processes on the 1st and 2nd appellants. He therefore urged this Court to hold that there is no evidence or credible evidence to hold that there was service of the originating process on the 1st and 2nd appellants in view of the contradictory evidence of the respondents, and also urge this Court to allow this appeal.

?It is to be noted that the evaluation of evidence and finding of facts are within the province of the Lower

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Court and an appellate Court will only interfere if such evaluation and findings are perverse and show a misapprehension of facts. See the case of Are v. Ipaye (1990) LPELR-541, 22; (1990) SC (Pt. 11) 109. Thus, where the learned trial judge has carefully evaluated evidence and justifiably appraised the facts, it is not the business of an appellate Court to interfere, and to substitute its own view for the one of the trial Court. See the case of Igago v. The State (1999) LPELR-1442.27; (199) 14 NWLR (Pt. 637); and Woluchem v. Gudi (1981) 5 SC 291.
Also, it is a trite principle of evidence that it is only where the complaint on evaluation does not affect the issue of credibility of witnesses that an Appeal Court is in as good a position as the trial Court to evaluate the evidence given at the Lower Court and come to a proper decision which may or may not accord with that of the trial Court. Thus, when the question borders largely on the credibility of a witness, an appellate Court cannot tamper and/or substitute its view with that of the learned trial judge who saw and observed the demeanour of the said witness(es). See Afolayan v. Ogunrinde (1990)

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LPELR-198, (1990) NWLR (pt. 127) 369.

In the instant case, the learned trial judge carefully evaluated the affidavit evidence placed before him and the oral evidence of the witnesses who appeared before him. He attached probative value to all the pieces of evidence as he deemed appropriate. On the basis of which, he ruled and refused to grant the appellants? application. Now the question that need to be answered is whether the decision of the learned trial judge was based on evidence on record?

?The 1st and 2nd appellants claimed to be resident in Lagos, thus, they insisted that the writ of summons should have been served on them in Lagos. They contended that this piece of evidence was not controverted and/or contradicted. I do not agree with this contention of the appellants. The respondents copiously deposed to the facts that the 1st and 2nd appellants are resident in Ukpor community within jurisdiction of the Lower Court. For purpose of clarity I will undertake to reproduce the portion of the counter-affidavit which contained this piece of evidence. The said counter-affidavit was filed on the 25th day of February, 2011, and paragraph 6 states

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as follows:
?6. In specific reply to paragraphs 3, 10a, 11a, 10b and 12b, I state as follows;
a. The 1st and 2nd defendants/applicants, indeed, ordinarily reside at Amadim and Uhuebe village of Ukpor, respectively;
b. The 2nd defendant/applicant surely resides in Ukpor, hence his parade as an Igwe-Elect of Ukpor, which according to our counsel?s information today in his office, he would have been disqualified, ab inibtio, by both the Traditional Rulers Law and the Ukpor Igweship Constitution, from initiating his baseless claim to the throne;
c. The 1st defendant/applicant, who is the chairman of the Ukpor Imprvement Union also reside at Ukpor whereat he daily attends his office at the National Secretariat of the Ukpor Improvement Union, situate at Ukpor and also holds meeting thereat;?

The learned counsel to the respondents argued in the respondents? written address at the Lower Court that Ukpor Community unlike Lagos is not divided into streets and numbered. This point was not challenged or controverted by the appellants. It is my finding that the respondent?s counter-affidavit materially contradict the

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5th respondents further affidavit.

In addition, I agree with the submission of the learned counsel to the respondents that though the rules of Court stipulates that service of the originating process or all other Court?s processes must be effected on the defendants, but there is no such rule which specifically stipulate that such service must be effected on the defendant at a particular place or residence of the defendants. It is suffices if the defendant has a place of residence or business or any address at all, where service is capable of being effected thereat, within the jurisdiction of the issuing Court. Also, the learned trial judge, after due considerations and evaluation of the bailiff?s affidavit and oral evidence, attached due probative value to his evidence and relied on the same in reaching his decision. The said probative value attached to the bailiff?s evidence was based on the learned trial judge?s conviction of the cogency of the bailiff?s evidence and nature of his work (that is the bailiff?s credibility), this Court has no cause or justification to interfere with the said finding. On the whole, it is

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my finding that the decision of the Lower Court was based on evidence on record. Thus, this Court has no reason to tamper with or dislodge the said decision.

Finally, I agree with the submission of the learned counsel to the respondents that the essence of service was to bring to the notice of the adverse or opposing party of the existence of the suit against him in Court. Thus, where the defendant or his counsel caused appearance to be entered whether under protest or not, any defect in service would invariably be treated as mere irregularity and accordingly discountenanced. This is because the rule and or objective of service would have been held to have achieved its purpose by the appearance of the defendant or his counsel in Court.

Flowing from the above, it is my firm view point that this appeal lacks merit. It is accordingly dismissed. The ruling of the Lower Court delivered on 7th day of March, 2012 is hereby affirmed by me. N50,00000 costs is awarded in favour of the respondents.

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Other Citations: (2016)LCN/8671(CA)