By Dumgbara N. S Torbari Esq
It is elementary law that originating processes are required to be served on the concerned party by the sheriff of court or other process servers as dictated by the rules of court. It is also elementary law that after service, the sheriff or process server deposes to an Affidavit of service to that effect. It is common knowledge that in the absence of oof of service, the court’s jurisdiction to entertain the matter remains hanging in the balance. This why Claimant’s counsel must follow up to ensure service is duly effected and proof of same is in the court’s file.
The focus of my presentation, however, is in respect of where the defendant or defendants (as the case may be) denies or wants to deny service. The law is now settled that the only way to challenge, controvert, contest, or rebut an Affidavit of Service is by filing a counter Affidavit to that effect. In UKO VS. EKPENYONG (2006)5 NWLR(PT.972)70@ 98, paras C-G, it was held” “Affidavit of Service is Prima facie proof of service. The only way to challenge the presumption of such service is by filing a counter-affidavit to counteract the affidavit of service.
Failure to file such is fatal. Oral argument to this effect cannot avail”. The point is further clarified in AHMED VS. AHMED (2013)7MJSC(PT.1)136@203 paras A-B, where the Supreme Court, per BODE RHODES VIVOUR J. S. C, held “If the deponent to an affidavit of service alleges that he served process on the defendant at his residence and states therein the time and place as in this case and the defendant denies it in an affidavit or counter-affidavit, a bare denial would have no weight.
The defendant is expected to file an affidavit denying service and giving a truthful rebuttal to the deposition in the affidavit of service. For example, he must depose that, (a) his residence is not where it was alleged he was served, (b) the bailiff never served him any process, (c) at the time it is alleged he was served,he was not at home or not in the country (with proof of his whereabouts) “.
The second point here is that the counter affidavit must be personally deposed to by the defendant or defendants individually, supplying relevant and necessary facts/particulars.The Supreme Court affirmed this position recently in MGBENWELU VS. OLUMBA (2017)5 NWLR(PT.1558) 169@173 ratios 3 $ @175,ratio 5 where it was held”The proper way to challenge an affidavit of service is to file a counter affidavit and not as happened in the instant case by way of a motion for adjournment or preliminary objection to dismiss the suit …A person challenging 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”.The usual attitude of Lawyers using juniors or other staff in chambers to depose to affidavits on behalf of clients does not apply here. There is nothing in the Evidence Act permitting such in respect of affidavit of service. Therefore a counter affidavit challenging an affidavit of service is in a class of its own. Lawyers who do the contrary will shoot themselves in the foot and do substantial injustice to the case of their clients.
This is because, it will mean that there is no challenge in the eyes of the law,to the affidavit of service and that is the end of the case of the party purporting to challenge service. In AHMED VS. AHMED supra, the court went on to hold, “In view of the fact that material depositions in the affidavit of service have not been controverted, the burden of proving service have been discharged and the affidavit of service which initially was Prima facie proof of service is now conclusive proof that the originating process was indeed served on the 1st defendant/applicant”.
It is important to add here that oral or written argument of counsel cannot cure the evil.In UNITY BANK PLC VS. RAYBAM ENG. LTD(2018)12NWLR(PT.1633)214@221,ratio 9,it was held “The submission of counsel no matter how brilliant cannot form or be valued as evidence neither can it take the place of evidence which is lacking in this case”.The only evidence before the court will be the affidavit of service which the court will be entitled to act upon.
However, as touching service of process by substituted means, the law is settled that such service must be in line with the manner specified in the order of court, else it can be voided without much ado.In EMEKA VS. OKOROAFOR (2017)11 NWLR(PT.1577)411@432,ratio 15,the Supreme Court held”Failure of the appellant to prove that the respondents were served with the originating process in compliance with the order of substituted service rendered the service ineffectual and liable to be set aside”.
In addition,it appears therefore, that as regards service of process pursuant to the provisions of rules of court,substantial compliance will suffice, whereas as touching service of process by substituted means pursuant to order of court,strict compliance is mandatory.
In conclusion, I want to point out that the law still remains settled that the mistake, error or ineptitude of court officials cannot be visited on the litigant.In MAITUMBI VS. BARAYA (2017)2NWLR(PT.1550)347@366,ratio 28,it was held”…The law allows room for human error…trivial or trifling mistakes or errors are likely to be made by litigants and counsel from time to time.
This should however not deprive a party from having his complaint or matter properly ventilated and determined on the merit”.Also,in UNILORIN VS. OBAYAN (2018)13N NWLR(PT.1635)72@74,ratio 4,the Supreme Court held “where a plaintiff has done all that is required in law to commence an action, he cannot be held liable for every other failure attributable to official negligence”.Finally, in CENTRAL BANK OF NIGERIA VS. SHIPPING COMPANY SARA B.V (2015)1NWLR (PT. 1469)1@7,ratio 4,the court held “The mistake or fault of a court official should not be visited on a party who has done what is required of him to have his document filed in court and served in his opponent”.
Therefore,where a party has prepared and brought his processes to court,paid the appropriate filing fees including official cost for service,he is deemed to have fulfilled all righteousness as touching requirements for getting his case ventilated in court. Any Other thing that transpires in respect of his process from that point is not and should not be his headache, if the present disposition of the courts to do substantial justice is a song worthy of singing.most obliged.
DUMGBARA N. S TORBARI ESQ. NBA, LAGOS.