WHETHER AN AFFIDAVIT OF SERVICE IS PRIMA FACIE EVIDENCE OF SERVICE

CASE TITLE: CHELLARAMS PLC & ANOR v. ADEYEMI & ORS (2018) LPELR-46016(CA)

JUDGMENT DATE: 3RD DECEMBER, 2018

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: ABUBAKAR MAHMUD TALBA, J.C.A.

SUMMARY OF JUDGMENT

INTRODUCTION:

This appeal borders on civil procedure.

FACTS:

This is an appeal against the Ruling of Ogun State High Court delivered on the 5th August, 2010. 

The 1st – 4th Respondents as Plaintiffs instituted an action against the Appellants and the 5th Respondent as Defendants vide a writ of summons and statement of claim dated the 21st September, 2005. The originating process was served on the 1st Appellant who caused its counsel to file a memorandum of appearance on 21st August 2006. Other defendants were served by pasting the originating processes on the land in dispute.  The 1st Appellant did not file a defence to the statement of claim while other defendants did not file any process at all.  

Sequel to the failure of the 1st Appellant and other defendants to file their statement of defence.  And despite services of several hearing notices on them, the learned trial Judge heard the evidence of the 1st-4th Respondents and delivered her judgment on the 22nd April 2008.  The said judgment was thereafter executed on the 29th January, 2009.  The report on the execution duly signed by the Chief Bailiff of the High Court of Ogun State was submitted in the Court’s file.

On the 10th December 2009 the Appellants filed a motion dated 9th December, 2009.  The motion seeks for the following reliefs:

1. Extending time within which to apply to set aside the judgment of this Honourable Court delivered on 22nd April 2008.
2. Setting aside the judgment of this Court delivered on the 22nd April 2008
3. Ordering the re-hearing of this matter on its merit.
4. Staying Execution of the said judgment pending the hearing of the instant application.
5. Extending time within which the 1st and 2nd defendants/applicants may file their statement of defence to this suit.
6. And for such further and other orders as this Honourable Court may deem fit to make in the circumstances.    
   The 1st-4th Respondents filed a counter affidavit and a further and better counter affidavit.  After hearing, the learned trial Judge delivered a well-considered Ruling on the 5th August, 2010, wherein he refused the application and he dismissed same. Not satisfied, the Appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal sole issue for determination, thus:

“Whether the Ruling of the Court below can be qualified in law in view of the evidence of non-service presented before it by the Appellants/Applicants”.

DECISION/HELD:

On the whole, the Court held that the appeal had merit and same was accordingly allowed.

RATIOS:

• APPEAL- GROUND(S) OF APPEAL: Effect of a ground of appeal from which no issue for determination is formulated
• APPEAL- FORMULATION OF ISSUE(S) FOR DETERMINATION: Principles guiding formulation of issues for determination in an appeal
• APPEAL- REPLY BRIEF: Purpose of a reply brief; Effect of failure to comply with rules on reply brief
• EVIDENCE- AFFIDAVIT EVIDENCE: Effect of uncontroverted facts in an affidavit
• PRACTICE AND PROCEDURE- SERVICE OF COURT PROCESS(ES): Importance/object of service of process(es); effect of failure to serve process(es) where required
• PRACTICE AND PROCEDURE- AFFIDAVIT OF SERVICE: How to challenge an affidavit of service

PRACTICE AND PROCEDURE- SERVICE OF COURT PROCESS(ES): Importance/object of service of process(es); effect of failure to serve process(es) where required