AKANO v. NNEJI

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TUNDE OYEBANJI AWOTOYE J.C.A.(Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Defendant now Appellant against the decision of the High Court of the Imo State delivered on 7/12/2015 in suit No: HOW/819/2012.
The Claimant had instituted the action under the undefended list procedure. He filed the writ of summons affidavit in support of the claim and motion ex parte praying inter alia for an order to issue the said writ of summons. The lower Court heard the application, granted all the prayers on 18/12/2012 and adjourned the matter to 21/2/2013 for hearing. Thereafter on 21/3/2013 the lower Court heard the matter and gave judgment in favour of the Respondent.
The Defendant (now Appellant) reacted by filing conditional memorandum of appearance on 20/01/2014 along with a motion on notice praying for the setting aside of the issuance of the writ of summon and its service on the Appellant.
On hearing the application, the learned trial Judge found it to lack merit and as a result dismissed it. The Appellant being dissatisfied with the said ruling then appealed to this Court.
In his Amended Notice of Appeal filed on 22/3/17 but deemed filed on 3/7/17 the Appellant challenged the said Ruling on six grounds as follows:
GROUNDS OF APPEAL
GROUND ONE: ERROR IN LAW
The learned trial Judge erred in law when it dismissed the Appellant’s application to set aside the purported issuance of the writ of summons in this suit and its purported service on the Appellant.
PARTICULARS OF ERROR
(i) The writ of summons that initiated the suit under the undefended list procedure was in breach of Order 11 Rule 8(1) of the High Court of Imo State (Civil Procedure) Rules 2008 applicable to the case.
(ii) The writ of summons in the suit was issued by the Assistance Chief Registrar of the High Court on the 13/12/2012 before the lower Court granted an order for its issuance on the 18/12/2012.
(iii) The said writ of summons was irregular, invalid and incompetent to activate the jurisdiction of the lower Court to entertain the matter.
(iv) The said writ of summons was liable to be set aside upon the application the Appellant affected by it.
(v) The dismissal of an application of the Appellant seeking to set aside the issuance of the incompetent writ of summons occasioned miscarriage of justice.
GROUND TWO: ERROR IN LAW:
The learned trial Judge erred in law when it held: There is a 16 paragraph affidavit in support of the claim by the Claimant attached to the memorandum to be subscribed on the writ which the Registrar of this Court assessed on 13/12/2012. It was on that 13/12/2012 following the payment that in law the application/affidavit was entered as a Court process the Registry is always the 1st port of call to all intending litigants in any Court of law. For the purpose of Order 11 Rule 8(1) the application to the Court was satisfied by the Claimant.
PARTICULARS OF ERROR:
(i) The application to the Court by the claimant was to enable the Court to consider whether to grant or not to grant leave to issue the writ of summons under the undefended list and mark it as such.
(ii) The mere filing of an application to the Court does not amount to the order sought for on the motion paper until the application is heard and granted.
(iii) The payment made by the claimant when he filed the application is in respect of the Motion Exparte which was heard on the 18/12/2012 and does not amount to granting the Orders sought for on the face of the Motion.
(iv) The writ of summons under undefended list procedure cannot predate the hearing of the application for leave to issue same and have it marked accordingly.
(v) The Respondent did not satisfy the requirement of Order 11 Rule 8(1) by merely paying for the application/the affidavit in the Court’s Registry.
GROUND THREE: ERROR IN LAW
The learned trial Judge erred in law when it held: Order 22 of the Rules of Court emphatically states that no demurer shall be allowed.
PARTICULARS OF ERROR:
i. The issue of jurisdiction to hear a matter because the writ that initiated the suit was not validly issued does not amount to demurer proceeding envisaged by Order 22 of the High Court (Civil Procedure) Rules.
ii. The application to set aside the issuance of a writ of summons for being incompetent is not demurer proceedings.
iii. There is a distinction between a demurer proceeding and issue of jurisdiction.
iv. The point of law raised in the application, challenged the

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substantive jurisdiction of the lower Court to hear the matter.
GROUND FOUR: ERROR IN LAW
The learned trial Judge erred in law and breached the Appellant’s Constitutional Right to fair hearing when the Court suo motu raised the issue of demurer in Order 22 of the High Court of Imo State (Civil Procedure) Rulesand proceeded to resolve same in favour of the Respondent without affording the Appellant a hearing on the issue.
PARTICULARS OF ERROR:
(i) None of the parties to the application to set aside the issuance of the writ of summons in contention raised and argued the issue of demurer before the lower Court.
(ii) The lower Court on its own raised the issue and without hearing the Appellant, resolved it in favour of the Respondent.
(iii) When a Court in the course of hearing a matter raises an issue suo motu it must afford the parties to be heard on it before determining the issue.
(iv) The right to fair hearing being a Fundamental Constitutional Right guaranteed by the Constitution, the breach of it in any trial nullifies the trial.
GROUND FIVE: ERROR IN LAW
The learned trial Judge erred in law when it held: The Defendant ought to have therefore put a defence on the merit at the same time challenge the writ as has done.”
PARTICULAR OF ERROR
i. The time honoured principle is that the issue of jurisdiction can be raised at any state of the proceeding.
ii. The Defendant is not under a duty to first file a defence before raising the issue of jurisdiction challenging the issuance of a writ of summons.
iii. Issuance of a writ of summons is fundamental to the jurisdiction and can be raised before a defence is filed.
iv. Application challenging the issuance of a writ of summons is not demurer proceeding.
GROUND SIX: ERROR IN LAW
The learned trial Judge erred in law and embarked on a voyage of speculation outside the issues canvassed before it to hold: At no time did the Defendant inform the Claimant that the address on the Power of Attorney is no longer valid. As it would appear that the relationship was ongoing between the parties. The Defendant, a professional owed a duty to the Claimant to officially invalidate any invalid address. It is an unwritten law of business that on a change of address, all clients are formally notified. The indemnity address could mean-This is an alternative.”
PARTICULARS OF ERROR
i. The case of the Respondent before the lower Court is not that he was not aware that Plot 72, Housing Area A New Owerri is no longer the Appellant’s office.
ii. The case of the Respondent is that the Appellant is the owner of Plot 72 Housing Area A New Owerri. He tendered Exhibit E to that effect.
iii. The case of the Appellant before the lower Court was that the Respondent knew he has relocated from Plot 72, Housing Area A New Owerri to Plot 19 Housing Area A New Owerri and that the Respondent was in the said new address when he came to execute the indemnity certificates in 2010 tendered as Exhibits 1. 2. & 3.
iv. Exhibits 1, 2, & 3 carries the address of the Appellant as Plot 19, Housing Port-Harcourt Road Owerri.
v. The said Exhibits in themselves constitute sufficient notice of the Appellant’s new office address to the Respondent who had gone there to execute the documents.
vi. The issue of Plot 19 Housing Area A could mean this is an alternative address is speculative.
vii. A Court of law does not engage in speculation but must be allergic to speculation.
After transmission of record of appeal to this Court parties filed and exchanged briefs of argument.
APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s brief of Argument was filed on 22/3/17. It was settled by her counsel D. O. AGBO Esq.
Learned counsel to the Appellant formulated three issues for determination, namely:
1. Whether the lower Court was right in dismissing the Appellant’s application to set aside the purported issuance of the writ of summons on the 13/12/2012 before the order to issue same was granted on the 18/12/2012.
2. Whether the application of the Appellant to set aside the purported issuance of the writ of summons on ground that the lower Court lacked the jurisdiction to entertain same, the writ of summons being incompetent, amounts to demurrer envisaged by Order 22 of the High Court of Imo State (Civil Procedure) Rules 2008 and moreso, when none of the parties raised the issue before the lower Court.

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3. Whether the lower Court was right in embarking on a voyage of speculation outside the application to determine the application.
ISSUE ONE
Learned counsel to the Appellant submitted on issue one that a writ of summons under the undefended list procedure issued before the order to issue same was obtained breached the provision of Order 11 Rule 8 (1) of the High Court of Imo State (Civil Procedure) Rules, 2008 and therefore void and incompetent to activate the jurisdiction of the lower Court to entertain it. He submitted that the non-compliance with Order 11 Rule 8 (1) of the High Court of Imo State (Civil Procedure) Rules, 2008 by the respondent is more than a mere irregularity and as such, cannot be cured by Order 5 Rule 1 (1) of the Imo State High Court (Civil Procedure) Rules, 2008, as the defect is so fundamental and goes to the root of the writ of summons itself. He relied on the cases of OBARO v. HASSAN (2013) 8 NWLR (PT 1375) 425 AT PAGE 449, PARAS D-F; PURECHEM IND. LTD v. SPICA SHIPPING CO. LTD(2012) 3 NWLR (PT 1287) 327 at 348, PARAS A-B; AGIP (NIG) LTD v. AGIP PETROLI INTERNATIONAL (2010) 5 NWLR (PT 1187) 348 at 419 PARA H.
He further submitted that the lower Court was wrong and misconceived the law when it held at pages 113-134 of the record of appeal that it was on that 13/12/2012 following the payment that in law the Application/Affidavit was entered as a Court process and the Registry is always the 1st port of call to all intending litigant in any Court of law. For the purposes of Order 11 Rule 8 (1) the application to the Court was satisfied by the Claimant.
Learned counsel to the Appellant urged this Court to resolve this issue against the Respondent and allow the appeal.
ISSUE TWO
Learned counsel to the Appellant submitted that a challenge to the jurisdiction of the lower Court to entertain a suit on ground that the writ of summons that initiated the suit was defective and incompetent, does not amount to demurrer proceeding envisaged by Order 22 of the High Court of Imo State (Civil Procedure) Rules, 2008. He relied on the case of ELABANJO v. DAWODU (2006) 15 NWLR (PT 1001) 76 at pg 115 PARAS C-G.
He further submitted that the lower Court completely misconceived and equated the issue of jurisdiction of a Court to entertain a matter with demurrer proceedings envisaged under Order 22 of the High Court Rules. He relied on the cases of ARJAY LTD. v. A.M.S. LTD (2003) 7 NWLR (PT 820) 577 at pg 602-603, PARAS H-C, 626, PARAS C-G; PEMU v. NDIC (2016) 6 NWLR (PT 1507) 175 at pg 209-210, PARAS G-B.
Learned counsel to the Appellant also submitted that none of the parties to the proceeding raised and argued the issue of demurrer envisaged under Order 22 of the High Court of Imo State (Civil Procedure) Rules, 2008before the trial Court. He relied on the case of OJO-OSAGIE v. ADONRI (1994) 6 NWLR (PT 349) 131; EJEZIE v. ANUWU (2008) 12 NWLR (PT 1101) 446 at 474 PARA H.
He urged this Court to resolve this issue in favour of the Appellant and allow this appeal.
ISSUE THREE
Learned counsel to the Appellant submitted that at no time did the question of the Appellant not informing the Respondent of her change of address, and owing the Respondent a professional duty to officially invalidate any address as it is an unwritten law of business to formally notify all clients of change of address, was canvassed by either party both in the processes filed and in oral argument or submission.
He contended that the lower Court holding that the address on the indemnity certificate signed by the Respondent could mean an alternative address is speculative and Courts of law have no authority to speculate but must confine themselves to issues or evidence placed before them. He relied on the cases of SPRING BANK PLC v. BABATUNDE (2012) 5 NWLR (PT 1292) 83 at 95, PARAS D-F; IKENTA BEST NIG. LTD v. A.G. RIVERS STATE(2008) 6 NWLR (PT 1084) 612 at 653 PARA G; UWAGBOE v. THE STATE (2008) 12 NWLR (PT 1102) 621 at 647, PARAS G-H.
He urged this Court to resolve this issue in favour of the Appellant and allow this appeal.
Learned counsel to the Appellant urged this Court to allow this appeal, set aside the judgment dated 21/2/2013 and order of the lower Court made on 7/12/2015 dismissing the motion to set aside the issuance and service of the writ of summons in the suit.
RESPONDENT’S BRIEF OF ARGUMENT
The respondent’s Brief of Argument was filed on 2/8/2017. It was settled by his counsel EMEKA NWAGWU Esq.
Learned counsel to the Respondent formulated a lone issue for determination:

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Whether the lower Court was not right to dismiss the application by the Appellant to set aside the judgment of the lower Court made on 21/2/2013, writ of summons and its service on Defendant/Appellant.
Learned counsel to the respondent submitted on this issue that the lower Court was right to dismiss the application of the Appellant at the lower Court which sought amongst other reliefs to set aside its judgment of 21/2/2013 as being incompetent and a nullity.
He relied on the cases of UTC v. PAMOTEI (1989) 2 NWLR (PT 103) 224 at 299, PARAS A-E; ALHAJI ABUBAKAR DAN AZUMI v. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT 461) 462 at 477, PARAS E-A.
He further submitted that the lower Court was right that all processes of Court including writ of summons were properly served on the Appellant but she chose to ignore them.
Learned counsel to the Respondent contended that the argument of the Appellant on his issue 1 at pages 2-7 of the Appellant’s brief of argument was very speculative and contradictory and that these contradictions and inconsistencies on oath by the Appellant are very fatal to the case of the Appellant. He relied on the case of OGBUANYINYA v. OKUDO (No. 2) (1990) 4 NWLR (PT 146) p. 551 at 560 PARAS B-C and Section 168 (1) of Evidence Act, 2011.
Learned counsel to the Respondent also submitted that the argument of the Appellant on his issue two at pages 7-11 is completely misconceived as the lower Court gave the Appellant the opportunity to file a defence on the merits before the Appellant withdrew his first application.
He urged this Court to resolve the lone issue in favour of the Respondent and against the Appellant by dismissing all the reliefs sought in this appeal.
I have carefully considered the submission of learned counsel as well as the contents of the record of appeal.
As aforestated the Appellant’s brief of argument donated three issues for determination wit:
1. Whether the lower Court was right in dismissing the Appellant???s application to set aside the purported issuance of the writ of summons on the 13/12/2012 before the order to issue same was granted on the 18/12/2012.
2. Whether the application of the Appellant to set aside the purported issuance of the writ of summons on ground that the lower Court lacked the jurisdiction to entertain same the writ of summons being incompetent amount to demurrer envisaged by Order 22 of the High Court (Civil Procedure) Rules 2008 and moreso, when none of the parties raised the issue before the lower Court.
3. Whether the lower Court was right in embarking on a voyage of speculation outside the application to determine the application.
On the other hand EMEKA O. NWAGWU for the Respondent formulated a sole issue for determination thus:
Whether the lower Court was not right to dismiss the application by the Appellant to set aside the judgment of the lower Court made on 21/2/2013 the writ of summon and its service on Defendant/Appellant.
I have carefully considered the issue and I am convinced with due respect that the sole issue donated by the Respondent suffices for the just determination of this appeal. I therefore adopt the issue in this judgment.
RESOLUTION OF SOLE ISSUE
Whether the lower Court was not right to dismiss the application by the Appellant to set aside the judgment of the lower Court made on 21/2/2013, writ of summons and its service on Defendant/Appellant.
The resolution of this sole issue will turn on the interpretation of the provision of Order 11 Rule 8 of Imo State High Court (Civil Procedure) Rules, 2008 with respect to issuance of writ of summons and the resolution of the conflicting depositions in the affidavit of the parties on service of Court processes on the Appellant.
Order 11 Rules 8-12 of the Imo State High Court (Civil Procedure) Rules, 2008 read thus:
8. (1) Where a Claimant in respect of a claim to recover a debt or liquidated money demand believes that there is no defence to his claim, he shall make an application to a Court for the issue of a writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there was no defence thereto.
(2) The Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the Undefended List and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the

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circumstances of the particular case.
9. There shall be delivered by the Claimant to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
10. (1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this Rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List, and the Claimant shall then comply with Order 3 Rule 2 and the case shall proceed in the normal way.
11. Where any Defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 10(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon without calling upon the Claimant to prove his case formally.
12. Nothing herein shall preclude the Court from hearing or requiring oral evidence should it so think fit, at any stage of the proceedings under Rule 11.
It is clear from Order 11 Rule 9 that what the Rules require to be served on the Defendant are:
1. A marked issued writ of summons
2. A copy of the affidavit setting forth the grounds upon which the claim of the Plaintiff is based.
The affidavit must state that in the deponent’s belief there was no defence to the claim.
The pertinent question to ask at this stage is when is a writ of summons issued? Order 6 Rule 2(1) of the Rules state it thus:The Registrar shall sign and stamp every originating process whereupon it shall be deemed to be issued
A writ of summon is issued when it is signed and stamped by the registrar of the High Court.
The contention of the Appellant on the writ of summons served was that it was issued on 13/12/2012 before the order to issue same was granted. I have taken pains to scrutinize the writ of summons on pages 1-2 of the record of appeal. It is true it was signed by the Registrar on 13/12/12 but it was not stamped. In other words, the said writ of summons was not issued in line with Order 6 Rule 2(1) of Imo State High Court (Civil Procedure) Rules. It was not issued before 18/12/2012 when the lower Court granted the order for the writ to issue. The contention of the Appellant on the incompetence of the said writ of summons on the ground of it being issued before the order of Court therefore holds no water.
I am not unmindful of the decision of the apex Court in OBARO v. HASSAN (2013) 8 NWLR (PART 1357) 425. The Plaintiff in the case was a legal practitioner who initiated the action under Order 23 of the Civil Procedure Rules applicable to Federal Capital Territory Abuja to recover his Professional fees on being served with the relevant processes, the Defendant objected to the writ among other things.
The objection was overruled and judgment was delivered in favour of the Plaintiff. The defendant aggrieved with the decision of the trial Court appealed to the Court of Appeal which allowed his appeal. In a further appeal to the Supreme Court OLUKAYODE ARIWOOLA J.S.C. opined thus:
Curiously, the Appellant had also contended that Order 23 Rule 1 does not say whether the writ shall be issued before or after the Courts Order
Indeed, this is not only a misconception but misleading to say the least. As earlier stated in this judgment the issuance of writ of summons pursuant to Order 23 under undefended list procedure cannot procede the order of Court so to do. In other words, contrary to the misconception of the Appellant even though the writ of summons is issued by the Registrar, he cannot issue one before the Court so order. It is a judicial function that cannot be given to an officer. See NWAKANMA v. IKOT LOCAL GOVERNMENT AUTHORITY (1996) 3 NWLR (PT 439) 732. Such a writ of summons that was issued before judicial decision so to do, upon consideration of an application became incompetent and will ordinarily rob the trial Court of its competence to try the matter. It is like a Notice of Appeal which requires leave before being filed to be filed without leave of Court it shall be incompetent and be so declared by the Court as a nullity MOHAMMED v. OLAWUNMI & ORS (1990) 2 NWLR (PT 133) 4 58.

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The facts of OBARO v. HASSAN (supra) are distinguishable from the facts of the case now on appeal. Apart from the fact that the Imo State High Court (Civil Procedure) Rules specifically defines the meaning of issuance under Order 6 Rule 2(1) the writ of summons in the instant case was not stamped by the Registrar. By virtue of the provision of Order 11 Rule 9 of Imo State High Court (Civil Procedure) Rules such a writ was not issued. That is what the Rules of the High Court of Imo State say and that is the law applicable. See MAGNA MARITIME SERVICES LTD & ANOR v. OTEJU & ANOR (2005) 14 NWLR (PT 945) 517.
In the light of the above I hold that the writ of summons in suit No; HOW/819/2012 was competent.
Another grouse of the Appellant was on the service of the processes at the lower Court.
The Respondent (who was the Plaintiff) had earlier sought and obtained the leave of Court to serve the writ of summons and any other processes in this suit by pasting same at the Defendants office located at Plot 72 Housing Area A off Port-Harcourt Road New Owerri Imo State Nigeria.
The Respondent exhibited a copy of the power of Attorney between him and the Defendant (now Appellant) where the office of the Defendant was referred to as being at Plot 72 Housing Area A Off Port-Harcourt Road New Owerri Imo State of Nigeria. The processes were served on the Defendant by pasting as ordered by the Court.
Subsequently the defendant applied for the setting aside of the order of substituted service and the purported service of the writ of summons on the Defendant.
The application was supported by 16 paragraph affidavit, paragraphs 2-7 of the supporting affidavit read thus:
2. That the Defendant was not served with originating processes in this suit before the judgment sought to be set aside was delivered on the 21st of February, 2013 hence the Defendant was unavailable to defend the matter before the said judgment.
3. That the writ of summons and other processes in this suit were addressed to the Defendant’s formal address and office no. 72 Housing Area A off Port Harcourt Road Owerri, Imo State.
4. That the Defendant has since over five years ago left no. 72 Housing Area Aoff Port Harcourt Road New Owerri, Imo State, and now at Plot 19 Housing Area A Off Port Harcourt Road New Owerri Imo State practicing under the name and style of Chinwe Akano & Associates.
5. That the Claimant is aware that the defendant no longer carries on business at plot 72 Housing Area A off Port Harcourt Road Owerri, Imo State but chooses to serve the Defendant at that address. The indemnity certificates signed by the claimant at the Defendant’s new office at plot 19 Housing Area A off Port Harcourt Road New Owerri, Imo State for receipt of the money in contention dated 14th of September 2010 are hereby annexed as Exhibits 1&2 respectively.
6. That from the onset, the Claimant did not intend that the Defendant be served with the processes in this suit.
7. That the Defendant only became aware of this suit when her Bankers showed her a drawn up judgment order which was served on it by the Claimant/Respondent.
He also relied on copies of indemnity certificate issued between the parties which put the address of the defendant as Plot 19 Housing Area A off Port-Harcourt Road New Owerri Layout Imo State.
In reply, the plaintiff filed 8 paragraph counter affidavit, paragraphs 7(b) – 7(d) of the counter affidavit are very pertinent. They read as follows:
(b) he Defendant was served the originating processes in this suit by pasting same in their office at No. 72 Housing Area A New Owerri, their advertised office which they are now mischievously saying is a formal office Annexed as EXHIBIT B is the Power of Attorney made on 6th March 2008 by the Claimant in favour of the Defendant executed in her said office.
(c) It is not true that the Defendant has its office at Plot 19 Housing Area A New Owerri off Port Harcourt Road Owerri. The said formal office is owned by the Defendant.
(d) The Defendant was aware of the pendency of this suit from inception and even boasted after the judgment in a telephone interview with the source magazine of April, 2013 at page 45 as follows:
Well if Mr. Nneji has judgment in his favour let him come and take the money. A copy of the said interview in the magazine is annexed a EXHIBIT C1

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The Defendant later filed a further affidavit containing 28 paragraphs. Paragraphs 6 -10 of the further affidavit state as follows:
6. That paragraph 7 of the counter affidavit is not true. No 72 Housing Area A New Owerri used to be the office of the Defendant as at the year 2008.
1. That the Defendant had since relocated to plot 19 Housing Area A New Owerri off Port-Harcourt Road, Owerri from the said address to the knowledge of the Claimant as at the date of initiating this suit.
2. That the Claimant himself executed all the indemnity certificates attached to the affidavit in support of the motion in the Defendant new address at Plot 19 Housing Area A New Owerri, Imo State.
3. That paragraphs 7(c) of the counter affidavit is not true. The Defendant is not the owner of No. 72 Housing Area A New Owerri, but was a tenant there.
4. That paragraphs 7(d) of the counter affidavit is not true. The Defendant only became aware of the suit after the judgment had been delivered.
The order of substituted service granted the plaintiff by the lower Court was based on his deposition that the defendants office was at Plot 72 Housing A off Port-Harcourt Road New Owerri Imo State as at the time of the application. The Plaintiff buttressed his assertion by relying on the Power of Attorney executed between the parties on 6/3/2008.
The Defendants contention however was that he had changed his office to No. 15 Housing Area A New Owerri, Imo State to the knowledge of the Plaintiff. He relied on copies of indemnity certificates made on 14/9/2010.
The affidavits of the parties at the lower Court were conflicting. When there are conflicts in affidavit, it is now necessary that this should be resolved through oral evidence or when there are documentary exhibits from which the conflicts can be resolved. See BISMILAHI v. YAGBA EAST LOCAL GOVERNMENT (2003) FWLR (Pt. 141) 1939 at 1964 EZECHUKWU & ANOR v. I. O.C. ONWUKA (2016) LPELR -26055 (S.C.).
I have perused the affidavits filed alongside the documentary exhibits. The contention of the plaintiff at the lower Court was not only that the Defendant could not be served the originating process and other Court processes personally but also that the Defendant ignored the letter from his solicitor and was avoiding him.
Paragraphs 10 – 13 of the supporting affidavit of the Plaintiff reads as follows:
10. I was constrained to give instruction to my solicitors EMEKA O. NWAGWU & ASSOCIATES to demand the said debt. My solicitor’s letter dated 13/11/12 is annexed as EXHIBIT D
11. That the Defendant has ignored entreaties and all my effort to resolve this matter amicably. The Defendant has in the recent past kept away from scheduled meetings between me and her on one flimsy reason or another.
12. The Defendant also ignored the letter from my solicitors and is now purposely avoiding me.
13. That I believe that the personal service of the originating and other processes of Court in this suit cannot be affected as a result of her attitude above stated and she had completely shielded herself from every contract.
The Defendant filed three affidavits at the lower Court namely:
(i) The Affidavit in support of his motion sworn to on 20/1/14 on pages 85-87 of record.
(ii) Further affidavit sworn to on 19/2/2014.
There is nowhere in any of the Defendant affidavit that he was not served the letter of Emeka O. Nwangwu (Respondent’s solicitors) demanding for the sum of N10,999,900 from the Defendant. The said letter was dated 13/11/2012 and addressed to Mrs. Chinwe Ekeoma, Messrs Chinwe Ekeoma and Associates, Estate Surveyors & Valuers, Plot 72, Housing Area A, Off Port-Harcourt Road New Owerri, Imo State.
If the said letter was served on the Defendant at the said address then the contention of the Defendant that she relocated to Plot 19 Housing Area A, New Owerri, Off Port Harcourt Road Owerri becomes impotent and unbelievable more so when her assertion was that the relocation was done over 5 Years before 20/1/2014 when she filed her affidavit in support of her motion. See paragraph 4 of Affidavit in support of motion filed and sworn to on 20/1/14 (pages 85-87 of record of appeal).
The assertion of the Defendant/Appellant is in the light of the above unacceptable. It therefore follows that the effort of the Appellant to invoke jurisdiction for improper service of process as a ground for setting aside the proceeding of the lower Court is a non-sequitur that holds no water at all. The Appellant was properly served.

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I have no hesitation in resolving the sole issue against the Appellant. This appeal is completely unmeritorious. The decision of the lower Court delivered on 7/12/2015 dismissing the Defendant/Appellant application is affirmed.
Appeal is dismissed with N60,000.00 costs in favour of the Respondent.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the lead judgment of my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA, which has just been delivered. I agree with the reasons advanced therein to arrive at the emphatic and resounding conclusive conclusion that the appeal is without any semblance of substance and devoid of merit. Hence, it should be visited with the concomitant order of dismissal. I am also of the same mindset. Thus, the appeal is also dismissed by me with the endorsement of the order made in the lead judgment of my learned brother, Awotoye, JCA with regard to costs.
ITA GEORGEÂ MBABA, J.C.A.: I had the opportunity to read the draft of the lead judgment just delivered by my learned brother, T.O. Awotoye JCA, and I agree with his reasoning and conclusions that the appeal is devoid of merit. I too dismiss it and abide by the consequential orders in the lead judgment.