How to Challenge an Affidavit of Service

CASE TITLE: O.A. Avanti (NIG) LTD v. SKYMAT (NIG) LTD (2024) LPELR-62608(CA)

JUDGMENT DATE: 15TH JULY, 2024

PRACTICE AREA: PRACTICE AND PROCEDURE

LEAD JUDGMENT: MUSLIM SULE HASSAN, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on setting aside the judgment sought to be enforced for non-service and fabrication of facts.

FACTS:

This is an appeal against the decision of the Ogun State High Court sitting at Ota delivered by Hon. Justice O.O. Majekodunmi on the 16th day of May, 2019.

​The Appellant was the Defendant/Applicant, while the 1st Respondent was the Judgment Creditor/Respondent at the trial Court.

The Respondent who was claimant at the trial Court approached the Court for claims of payment of contract sum N9,098,181.62 (Nine Million, Ninety-Eight Thousand, One Hundred and Eighty-One Naira, and Sixty Kobo) and damages.

The trial Court went ahead, heard the matter, and entered judgment for the Respondent. The Respondent proceeded to enforce the judgment through Garnishee, and it was one of the Garnishee Banks served with the order Nisi that drew the Appellant’s attention to the judgment against her, The Appellant also stated that the director of the Appellant and the CEO of the respondent had met on several occasions, but the Respondent never informed him of the judgment he obtained against his company; hence, the application to set aside the judgment sought to be enforced for non-service and fabrication of facts.

The trial Court dismissed the Appellant’s Motion to set aside his judgment for non-service dated March 27, 2019, and found that the Appellant has no defence to the claims of the Respondent for which judgment has already been entered.

The Appellant being aggrieved with the decision of the trial Court in dismissing her Motion on Notice had appealed against same to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court adopted the following issues for the determination of this appeal:

1. “Whether the trial Court was right in discountenancing the Appellant’s further affidavit and reply on points of law dated April 8, 2019 in response to the respondent’s counter-affidavit dated March 29, 2019, and in failing to consider the fundamental issue raised in Exhibit D attached to the Appellant’s further affidavit and reply on points of law, consequently resulting in denying the appellant a fair hearing.”

2. “Whether considering the peculiar nature of the facts in this case, the trial Court was right when it failed to set aside the judgment dated June 6, 2018, based on the Court’s conclusion that the Appellant had no triable defence and was duly served.”

DECISION/HELD:

In conclusion, the appeal was dismissed.

RATIOS:

• APPEAL- INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstance where an appellate Court will/will not interfere with the exercise of discretion by a lower Court
• CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING: Meaning of fair hearing; duty of party alleging breach of right to fair hearing to prove same
• COURT- DISCRETION OF COURT: Whether the Court in exercising its discretion is required to decide each case based on its facts
• EVIDENCE- STANDARD OF PROOF: Required standard of proof where there are criminal allegations in civil cases
• EVIDENCE- PROOF: Requirements of the law on proof of allegation of fraud
• PRACTICE AND PROCEDURE- COMPUTATION OF TIME: Whether Saturday is one of the days designated as a public holiday for the purpose of computation of time
• PRACTICE AND PROCEDURE- SETTLEMENT: When a transaction/settlement will be said to be implied
• PRACTICE AND PROCEDURE- AFFIDAVIT OF SERVICE: How to challenge an affidavit of service

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