IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU MBAISE
MONDAY, 4TH NOVEMBER, 2019
BEFORE HIS LORDSHIP: – HON. JUSTICE I.M.NJAKA.
SUIT NO HAM/52D/2019
BETWEEN
CHIDIEBERE CHUKWUEMEKA IWUNZE PETITIONER/RESPONDENT
AND
UGOCHI CYNTHIA IWUNZE (NEE MGBEIKE) RESPONDENT/APPLICANT
RULING
By Notice of Petition was filed on 28th January 2019 the Petitioner sought for the dissolution of the marriage between him and the Respondent.
On 28th February, the Respondent brought a motion and prays as follows:
AN ORDER SETTING ASIDE the service of originating processes of petition for decree of dissolution of marriage in this suit for being improper service.
AND for such further order(s) as the honourable court may deem fit to make in the circumstance.
The application is supported by 12 paragraphs affidavit deposed to by UGOCHI CYNTHIA IWUNZE (Nee Mgbeike). She deposed that Mr. Chidiebere Chukwuemeka Iwunze is her husband. Her husband is the Petitioner while she is the nominal Respondent in this petition for dissolution marriage.
She got wind of the said petition through her mother after a long period of time. She and her husband have been living together at No 3 Hardel Junction Orji in Owerri North Local Government Area of Imo State.
On 17/07/2017, she had a misunderstanding with her husband and since that day her husband deserted her till today.
Her address is at No 3 Hardel Junction Orji in Owerri North Local Government Area of Imo State and not at No. 76 Lobo extention Owerri. It is her husband who deserted her and left with two of their children of the marriage and went to unknown destination since 17/07/2017.
Her counsel, R.O. ANYANWU ESQ. informed her in his chambers at NO.7 Aguiyi lronsi Street Owerri and she verily believed him that the originating petition in this suit is supposed to be served on her personally or through substituted means, if ordered by the court.
She objects to being served with the court originating process through a proxy and hence she vehemently protest against this mode of service. She needs to be properly served for the interest of Justice.
The counsel filed a written address and formulated issue for determination as
“Whether it shall be just and equitable to grant the Applicant’s prayers as contained on the face of the motion paper.
It is submitted that the law is trite that proper service of originating court processes is fundamental to any commencement of court action. The principle of Fair Hearing only requires the court to give any defendant adequate notice of the case brought by the plaintiff against him. Therefore, when notice is properly and adequately done, it is now left for the defendant to defend his case or choose not to defend and the court is enjoined to act accordingly.
It is submitted that in the instant case, the rule is that the originating particulars of documents in this suit shall be served by delivering the document to the person personally. Referred to order VI Rule I(a) of the matrimonial causes Act, Cap. 220, Laws of the Federation 1990.
It is submitted that the applicant has shown in paragraphs 4 – 5 of the supporting affidavit of this motion that she got wind of this petition after a long time through her mother who is not even a party to this suit.
It is submitted that in view of the foregoing, the Applicant has made out a case worthy of Court’s consideration. The service of the court processes in the commencement of this action shall not be affected by proxy. It is improper service and fatal to the institution of this case which amounts to a denial of fair Hearing on the part of Respondent. The court is therefore urged to graciously grant this application in the interest of Justice.
The Applicant also filed FURTHER AFFIDAVIT IN SUPPORT OF THE MOTION FOR AN ORDER OF COURT SETTING ASIDE THE SERVICE OF ORIGINATING COURT PROCESS IN THIS SUIT. It is deposed to by UGOCHI CYNTHIA IWUNZE (Nee Mgbeike). She stated that her attention has been drawn to a counter affidavit of the Petitioner/Respondent served on her counsel. She vehemently deny paragraphs 4A- E, 5, 6, 7, 8, 9, 10, 11 and 12 of the said counter affidavit. The court bailiff did not serve her the originating processes personally and does not know her nor seen her for the first time. The court bailiff served her mother (Mrs. Mgbeike Irene) the court originating processes and her mother is not a party to this suit. The bailiff wrongly served on her mother the court originating processes on 30/01/2019 while she got wind of the purported service on 26/02/2019 and not on the date of 11/02/2019 as falsely claimed by the court bailiff.
The court bailiff in his affidavit of service did not state the name of the person who acted as the pointer. It is the petitioner who deserted her with their two children at No. 3 Hardel Junction Orji where she resides and still pays the House rent. She still objects to be served with originating court processes by proxy. She wants to be properly served for the interest of Justice.
The counsel filed what he entitled “FURTHER ADDRESS BY APPLICANT’S COUNSEL IN REACTION TO COUNTER AFFIDAVIT OF THE PETITIONER/RESPONDENT”.
According to the counsel, the only issue that calls for determination is whether the Respondent/Applicant should be served with originating processes in this suit by proxy. And the answer is in the negative.
It is submitted that that it is trite that where the rules of court provides a particular mode of service of court processes i.e. personal service, the courts are enjoined to exercise its discretion Judicially and not to dispense with the strict application of particular mode of service provided by the rules.
It is submitted that in the instant case, the rule is that the originating particulars of documents in this suit shall be served by delivering the document to the person personally. Referred to ORDER VI RULE I (a) of the Matrimonial Causes Act, Cap 220, Laws of the Federation 1990.
According to the counsel the citation quoted by his learned friend in respect of the court’s decision in PANACHE COMMUNICATION LTD VS AIKHOMU (1994) (part 327) 420 Ratio 1 & 2 is cited out of context and therefore not in tandem with the instant case. The only alternative means of service available the Petitioner/Respondent is by substituted means at the last place of abode of the Respondent as provided in ORDER VI, RULE 7 (1) of the matrimonial causes Act Supra.
The applicant averred that her mother Mrs. Mgbeike Irene who is not a party to this suit was given the originating processes in this suit on the 30/01/2019 and the Applicant got wind of it after twenty seven days (i.e. on 26/02/2019) and not on 11/02/2019 which is not true. Referred to paragraphs 6 and 7 of the Applicant’s further affidavit.
It is submitted furthermore, that a critical look at the purported affidavit of service filed by the court bailiff, there is no mention of any person’s name who acted as a pointer. The Applicant averred this evidence in paragraph 8 of the Applicant’s further affidavit. it is further submitted that this kind of mode of service by the court bailiff is against the provisions of the Sheriffs & Civil process Act, Cap S 6, LFN 2004
It is counsel’s final submission that the only way the Respondent/Applicant should be aware of a pending suit against her is for her to be properly served the originating processes as provided by the rules of matrimonial causes Act in order to ensure the fundamental rule of fair hearing.
Therefore the court is urged to graciously grant their application and discountenance the Counter affidavit of the Petitioner/Respondent.
The Petitioner Respondent filed a COUNTER-AFFIDAVIT IN OPPOSITION TO THE MOTION FILED ON 28/02/2019. It is deposed to by CHIDIEBERE CHUKWUEMEKA IWUNZE. He deposed that by virtue of his afore-said position he is very conversant with the facts deposed to in this counter-affidavit.
Paragraphs 1, 2 and 3 of the affidavit in support of the motion are true and are therefore admitted except to add that the Applicant is the Respondent in the Petition. Paragraphs 4,5,6,7,8,10 and 11 of the affidavit in support of the motion are all completely false and are consequently denied. He took out the Petition against the Respondent which was filed on the 28/01/2019 on his behalf by his Solicitors and on 1/02/2019 it was served on the Respondent/Applicant personally by the Bailiff of this court and a proof of service was filed to that effect. The certified true copy of the said proof of service is hereby annexed as Exhibit CC1.
This Court’s bailiff informed him on the 3/02/2019 at the High Court Ahiazu Mbaise premises at about 1:30pm when he came to enquire about whether he had been able to effect service on the Respondent/Applicant and he verily believed him that he met the Respondent/Applicant with her parents on the morning of 11/02/2019 when he went to serve and after exchanging greetings with them, enquired about the Respondent/Applicant who was shown to him and he accordingly served her the Petition personally.
After the incident of 17/07/2017 the Respondent/Applicant’s father and brother took her and their two (2) kids away from him and from the house they were living then at an Estate in Orji, Owerri North LGA, Imo State. It was after and due to the embarrassment that the incident of 17/07/2017 caused him, coupled with the fact that the Respondent/Applicant had left with their two (2) kids and the rent for the apartment expired about a month after the incident that he had to move to No.3 Hardel Junction Orji, Owerri North LGA, Imo State. More so, before he moved out, he even asked her to come and remove her belongings from the house before the rent expired.
As a matter of fact the Respondent/Applicant does not live and has never lived at No.3 Hardel Junction Orji, Owerri North LGA, Imo State. Instead, after she was taken away she has been living and residing with her parents at No. 76 Lobo Extension, Owerri, Imo State where service was effected on her.
Paragraphs 9 and 12 of the affidavit in support of the motion are within the personal knowledge of the Respondent/ Applicant, he is therefore not in a position to deny or affirm them.
His counsel, Stanislaus C. Nwadike, Esq informed him in his office at No. 13 Trinity Christian Street, Akwakuma, Owerri, Imo State on the 06/03/2017 by 3pm and I verily believed him that the Bailiff of this Court having served the Respondent/Applicant personally, she was properly served the Petition in this proceeding in accordance with the Matrimonial Causes Rules.
His counsel also informed him on the afore-mentioned date, place and time and he verily believed him that after filing the Petition, the Respondent/ Applicant had twenty eight (28) days to file her reply and before the matter can commence.
His counsel further informed him as afore-stated that this motion was filed within the twenty-eight (28) days which meant that the Respondent/Applicant was obviously served much earlier than the day the motion was filed.
His counsel equally informed him as afore-stated and he verily believed him that the Respondent/Applicant has been duly and properly served and she cannot deny knowing about the pendency of this Petition which is the very essence of service.
The Respondent/Applicant by this application is merely trying to frustrate this Petition from commencing or heard by this court as by her depositions in the affidavit in support of the motion in this application bears every sign that she has been served the Petition personally and very well knows about the pendency of this Petition. It will be in the interest of justice to refuse this application as same is completely baseless and unfounded.
The counsel filed a written address wherein he adopted the sole issue for determination raised by the Respondent/ Applicant’s counsel.
It is submitted that it is the hallmark of our legal jurisprudence that the essence of service of a process, in this case the Petition, is to ensure that the party who the action or application is brought against (i.e. the Defendant, Accused or Respondent) gets to be aware of the pendency of the action or application against him, This is in line with the fair-hearing principle and to enable the court assume jurisdiction.
According to the counsel, the afore-stated position of the law is the over-riding principle in considering the issue of whether the service of a process has been properly effected or otherwise. Consequently, once the court can establish or is satisfied that a party whom an action or an application is brought against, is well aware of the pendency of that action or application, the court may exercise its discretion to dispense with the strict application of a particular mode of service provided by the rules, particularly that of personal service.
It is submitted that in this instance, the bailiff of this Court who is the appropriate person that can properly effect service of the originating process, has deposed on oath in his affidavit of service that he served the Respondent/Applicant personally on the 11/02/201. Thereby satisfying the requirement of the Matrimonial Causes Rules as to the service of the petition.
It is submitted that assuming without conceding that the Respondent/Applicant was not even served personally by this Court’s Bailiff, it is well established principle of law that where a party who is to be served, was not service personally and a 3rd party receives the process and subsequently serves it personally on the party that ought to be served, such service have been held to be good and proper. Referred to PANACHE COMMUNICATION LTD v. AIKHOMU (1994) 2 NWLR (Pt. 327) 420 Ratio 1 & 2 where it was held inter alia: “Where a party to an action was not personally served by the bailiff of court but receives the process from a 3rd party who had earlier been served with the process by the Bailiff, such service by the 3rd party is still deemed to be personal service notwithstanding the absence of a direct service from a bailiff.
It is submitted that flowing from the above, in this instant application, paragraphs 3, 4 and 10 of the affidavit in support of the motion gives very clear credence to the fact that the Respondent/Applicant was personally and properly served, but she is only denying personal service because she wants to frustrate the progress of this proceedings. Just as she is lying to still be residing with Petitioner/Respondent at No.3 Hardel Junction, Orji, Owerri North LGA, Imo State.
It is submitted that the Respondent/Applicant would not have known whether or not she is a “nominal” Respondent and her husband the Petitioner if she had not been served with the Petition. Similarly, the Respondent/Applicant unequivocally admitted being aware of the pendency of the Petition/proceedings. Although, she claims it is through her mother after a long period of time. Curiously, she also did not tell this Honourable Court the exact date her mother allegedly received the process. She also did not tell this Court when exactly she got wind of the petition.
It is submitted that however, it should be noted that the Petition was filed on the 28/01/201 9 and was served on the 11 /02/2019 by the Bailiff of this Court on the Respondent/Applicant and on exactly the 28/02/2019 the Respondent had already gotten wind of the Petition, briefed a lawyer who subsequently brought this motion which was dated and filed on the 28/02/2019. Thus in less than a month the Respondent had become aware of the pendency of this proceeding, even before the Petitioner would take a date for the mention/hearing of the Petition, she had taken steps to file this application in relation to this proceeding.
It is submitted that admission is the greatest form of proof of a fact in any legal proceeding. Hence, even admission of facts by a party against his/her interest will be admitted and will need no further proof. Referred to UDE v. A. G., RIVERS STATE (2002) 4 NWLR (Part 756) 66 at 78, DAGGASH v. BULAMA (2004) 14 NWLR (Part 892) 144 but particularly AWOTE v. OWODUNMI (1987) 2 NWLR (Part 57) 367 where it was clearly held that;
“Admission of facts by a party against his interest is admissible in evidence and needs no further proof
The counsel submitted that on the principle of fair hearing he concedes to the submission in paragraph 4.02 of the written address of his learned friend for the Respondent/Applicant. The emphatic phrase there in his submission is “adequate notice.” Hence, in this instant circumstance, can the Respondent/Applicant truly deny not to have adequate notice, in view of the fact that she admitted getting wind of the pendency of this petition in less than a month after it was filed, even while the 28 days period provided for by the Matrimonial Causes Rules is still counting and even before the petition is given a date for mention/hearing.
Consequently the Court is urged to resolve the lone issue against the Respondent Applicant and in favour of the Petitioner/Respondent and exercise its discretion in striking out this application as the application is only aimed to delay and frustrate this proceeding from commencing and being heard/determined by this Court.
RESOLUTION OF MATTER
I have carefully considered the affidavit evidence before me as well as the submission of the counsel for and against the validity of the service of the Notice of Petition on the Respondent.
The Applicant/Respondent is saying that she was not giving the process directly by the bailiff but it was given to her mother who then gave it to her. Service of court process is what confers jurisdiction on the court. It will be an effort in futility for a court to entertain a matter when there is no prove that it was served on the other party. In CHUKWU & ORS v. CHUKWU & ORS (2016) LPELR-40553(CA) it was stated:
“I agree completely with the learned Counsel for the Appellants that service of process is most fundamental to the exercise of judicial powers of a Court. In Ngige v. Achukwu [2005] 2 NWLR (Pt.909) 123 at 141 – 142, this Court held on the authorities of Habib Bank Ltd. v. Opomulero [2000] 15 NWLR (Pt.690) 375. Ajidaun v. Ajidaun (2000) 4 NWLR (Pt.654) 605; IBWA Ltd. v. Paex Int’l Co. (Nig) Ltd. Co. (Nig) Ltd. (2001) 7 NWLR (Pt.663) 105; that: “No Court has jurisdiction to entertain any suit in which the processes are not served or properly served on the parties, as in the instant case; an Order made by a Court without jurisdiction is a nullity. See also Skenconsult Nig Ltd v. Ukey [1981] 1 S.C. 6.” Per AGUBE, J.C.A. (P. 83, Paras. A-D)
In NASCO MANAGEMENT SERVICES LTD. V. A. N. AMAKU TRANSPORT LTD. (2003) 2 NWLR (PT.804) 290, where the court, per Mangaji, JCA, of blessed memory, expounded at pages 338-339, that:
“Where service of hearing notice is called for any proceedings conducted without due issuance of it is rendered null and void. It is a fundamental vice which easily vitiates proceedings. Where proceedings are conducted when no hearing notice is served on a party who should have been necessarily served the whole proceedings are rendered void no matter how well conducted they were. See Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26-27; Wema v. Odulaja (2000) 7 NWLR (Pt.663) 1.”
In ALHAJI YUSUFF KADIRI & ANOR V. OTUNBA CHIEF (DR) J. A. EWUOSO (CA/L/356/2012)[2014] NGCA 16 (16 MAY 2014) (2014) LPELR-22953(CA) it is stated:
“I can hardly find fault with the finding of the learned trial judge as it represents the correct position of the law on service of originating processes. To merely write to a party or inform him orally that an action has been instituted against him lacks substance and cannot stand the test of proper service more so that the alleged letter was written to the Respondent’s counsel and not directly to him. The question is, what informed the decision of the appellants to dispatch such a letter when there was no pre-existing suit between the parties in which the said counsel was representing the Respondent To assume that the said counsel will represent the respondent in the said suit is glaringly speculative, hence fresh/originating processes are of necessity served directly on the adverse party. That notwithstanding, mere knowledge of the existence of a suit by a party through correspondence does not suffice because the essence of service, of an originating process on a defendant in any suit or proceeding is to bring to the notice of such defendant, the pendency, as well as the nature of the claim against him, this will enable him take steps as appropriate to defend or challenge the claim or suit if he so desires to do so. It is therefore unsatisfactory and unacceptable for a party to know about the existence of a suit through correspondence or mere information by a third party. Thus even if he is so informed, it does not dispense with the imperative of proper service of the originating processes on him. See ALHAJI LAI MOHAMMED v. CHIEF AFE BABALOLA (2011) LPELR-8973 where this Court held inter alia that:- ” It will not suffice that the defendant knows is informed that a suit has been filed against him, as the fact that he is aware that he has been sued in Court does not dispense with the need to serve him with an originating process. Service of any originating process is thus a basic or fundamental requirement in the activation of the jurisdiction of the Court against any defendant. Service of process is therefore essentially for the person to whom it is directed to have knowledge that he has a case to answer or claim to dispute before the Court “.Per SAMUEL CHUKWUDUMEBI OSEJI ,J.C.A ( Pp. 29-30, paras. A-C )
I believe this is not a case of the Respondent being aware of case claim against him or picking the hint of the suit from another source but not having the processes as to know the exact content
The affidavit in support of the application shows that the Applicant took hold of the process. In other words one can clearly see that the Respondent/Applicant was giving notice of the case and claims against her. See MR. SYLVESTER MAKO v. BARRISTER FELICIA B. UMOH (2010) LPELR-4463(CA).
There is in the court file an affidavit of service deposed to by the bailiff to the effect that Respondent was served on 11th February 2019. Though dated 11/2/19 the affidavit was sworn to on 25/2/2019. By virtue of Order 7 Rule 13(1) High Court (Civil Procedure) Rules, 2017:
“After serving any process, the Process Server shall promptly depose to and file an affidavit setting out the fact, date, time place and mode of service, describing the process served and may exhibit the acknowledgment of service. Such affidavit shall be prima facie proof of service.”
Affidavit of service is a prima facie evidence of service. Where a party wishes to contest the authenticity or valid of the affidavit of service, he must file a counter affidavit to the bailiff’s affidavit of service. In ECOBANK v. KUNLE & ORS (2018) LPELR-44239(CA) it is stated:
“Service of necessary processes of Court on appellant: And that takes me to the almighty issue of 1st to 3rd respondents’ alleged failure to properly notify appellant of their suit and its hearing by serving it all necessary processes of Court particularly hearing notice of the application for summary judgment. First, Mr. Eleja S.A.N. for appellant asserted that Mr. Adeniyi A.C. whom the bailiff deposed he served a writ of summons and motion on notice. (I shall come back to this issue shortly), and who it is shown at page 16 of the same records received service as Administrative Secretary of Oceanic Bank (original 5th defendant now substituted for by appellant) does not even exist in appellant’s employment so that 1st to 3rd respondents had a duty to establish his existence and employment/status with appellant but failed in that regard. I must confess that I find this argument rather strange, especially given learned senior counsel’s concession that there is an Affidavit of Service deposed to by a Chief Bailiff of the lower Court, one Atunde Jimoh, contained at page 2 of the Additional Records where he said he served ‘writ of summons and motion on notice’ on appellant through the same Mr Adeniyi. It is after all now well settled law that an affidavit deposed to by a sheriff/bailiff showing place, time and day of service of Court process is prima facie proof of service and raises a presumption, albeit a rebuttable one, which the person denying service can only rebut by first deposing to a counter affidavit: see Ahmed v. Ahmed (2013) ALL FWLR (PT 699) 1025 @ 1069 @1070,1080; (2013) 15 NWLR (PT 1377) 274 (S.C.); Mgbenwelu v. Olumba (2017) 5 NWLR (PT 1558) 169 @ 195, 196, 197, 198, 201, 202 (S.C); Emeka v. Okoroafor (2017) 11 NWLR (PT. 1577) 410 (S.C.). Here not only is the very submission of Mr. Eleja that Mr. Adeniyi is not a staff of appellant one of fact/evidence, which ought to be contained in a deposition, even his denial that the bailiff did not serve Mr. Adeniyi is another fact that must be deposed to in affidavit before arguments can be made to support it as shown by the authorities. Bare legal submissions cannot compensate for that evidence. The law is well settled that no matter the length and logic, submissions of counsel cannot substitute for pleadings or hard evidence: Oyeyemi v. Owoeye (2017) 12 NWLR (PT. 1580) 364 @ 403 (Bage J.S.C). A counter affidavit, I hold, is an absolute necessity to provide support for the type of submissions Mr. Eleja made about Administrative Secretary C.A. Adeniyi of appellant. In the absence of that, learned senior counsel’s arguments on behalf of appellant denying service on it of the writ of summons and the motion on notice go to no issue and are discountenanced and the presumption of service of those two processes on appellant remain unrebutted.” Per UGO, J.C.A. (Pp. 28-30, Paras. A-D)
Another issue that the Respondent raised is that she was served through a third party. A situation of this nature has arisen and decided upon by the courts. In NDU CHIAZOR & ANOR V ALH. LAWAL TUKUR & ANOR (2007) ALL FWLR (PT. 354) 394 AT 406 – 407 it is held that:
“Personal service is defined to be actual delivery of the notice or process to the person to whom it is directed. See Black’s Law Dictionary, English Edition, page 1180.
The court went ahead to state:
”The appellants have argued that service of the court processes on the secretary to God’s Time Foods Co. Ltd did not amount to personal service on them. This court in the case of Panache Communications Ltd v. Aikhomu (1994) 2 NWLR (Pt. 327) 420 had cause to determine whether service of a process by a bailiff on a third party who eventually serves parties to an action constitutes ”personal service”. Sulu-Gambari JCA had this to say at page 431, paragraphs C – D:’In this particular case, the bailiff served the writs of summons on the 1st appellant by giving the writs to the lady who ultimately delivered the processes to those who were directly concerned, which action, in my view means that the people who were directly concerned have been served personally. What has not been effected is the fact that the bailiff has not served the process by himself in person to the people to be served. The requirement of the law here is that the parties to be sued must be served personally, meaning that the processes must be given to them and that they are the people to receive them. The law does not require that a person to give it to them must give it to them by himself.’
His lordship at page 431, paragraphs F – H (supra) stated that the primary consideration of the court ought to be to do substantial justice without placing undue importance on mere technicalities. He stated thus:
‘In any case, the ends of justice would be better met by accepting that service had been properly effected since the purpose of service of process is to bring the matter of the processes to the attention of the person against whom the writ has been issued.’
In totality, the evidence before the court is that the Respondent was duly served. She has knowledge of the particulars of claim against her.
The application dated 28th day of February 2019 and filed same day is hereby dismissed.
I.M.Njaka
Judge
4-11-19