Affidavit Of Service: What Litigation Lawyers Must Note

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.