By Hameed Ajibola Jimoh Esq.
First and foremost, as I said earlier in this paper, the duties and significance of bailiffs in Nigerian courts in the administration of justice system cannot be overemphasized. In explaining the significance of the court’s bailiffs and the negative consequences of their shortfalls, I humbly make reference to the decision of Honourable Justice Kekere-Ekun (J.S.C.) while delivering the lead Judgment in the case of EMEKA v. OKOROAFOR & ORS (2017) LPELR-41738(SC). My Lord, held thus ‘…On the importance of a bailiff carrying out his statutory duty in accordance with the Rules or Order of Court, I refer to Odutola Vs Kayode (1994) 2 NWLR (pt.324) 1 @ 19 – 20 G – A, where Olatawura, JSC (of blessed memory) stated thus: “This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with order of Court. Where personal service is ordered, he must serve that person personally. Where a substituted service either by pasting at the last known abode of the person required to be served, or by publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual. Bailiffs are officers of the Court. Any dereliction of duty in the discharge of their duties will cause unnecessary delay in the administration of justice. A false return of service on the part of the bailiff may lead to an attempt to deceive the Court. This in itself is an abuse of that order.” Per KEKERE-EKUN, J.S.C. (Pp. 54-55, Paras. B-A). Furthermore, on the significance or importance of the duties of bailiffs, His Lordship Kekere-Ekun J.S.C. in this case law (supra) held thus ‘It is the usual practice when applying for substituted service to specify the name in which service is to be effected, the person on whom it is to be effected and where. The applicant chooses the vocation where he believes the processes are most likely to come to the attention of the person to be served. He may also request a particular mode of service, such as pasting at the party’s last known abode or place of business, by handing it to a named adult at a particular address or by publication in a widely circulating newspaper. The order would be made in accordance with the request. Having sought and obtained such a specific order. It cannot be open to a bailiff effecting service to do so at any other address or by any other means without a fresh order obtained from the Court. The bailiff purportedly effected service of the processes on the 1st respondent on 16/4/14 and deposed to an affidavit of service the following day, 17/4/14. In the affidavit of service deposed to he averred inter alia that he effected service by delivering same personally to 1st respondent through Shedrack Lawrence at 5 Mbanano street Independence Layout. “Before the day I served the motion on notice I did not know Shedrack Lawrence personally, but after he was pointed out to me by Richard Akwah I asked him if he were Shedrack Lawrence and he said that he was.” I had earlier reproduced the analysis of this affidavit by the lower Court as found at pages 752-753 of the record. I am in full agreement with the lower Court that there were many questions begging for answers in the said affidavit, as to how the purported service of the processes at an address other than the one contained in the order of Court came about. With due respect to the learned senior counsel for the appellant, the standard format of an affidavit of service does not preclude the bailiff from deposing to specific facts where he has not effected service in accordance with the order of Court. There was no reference in the order to any Shedrack Lawrence or to No. 5 Mbanano Street, therefore the averment that he did not know Shedrack Lawrence personally was immaterial, since he was not ordered by the Court to serve Shedrack Lawrence with any process nor was he ordered to serve any process at No.5 Mbanano Street. On the importance of a bailiff carrying out his statutory duty in accordance with the Rules or Order of Court, I refer to Odutola Vs Kayode (1994) 2 NWLR (pt.324) 1 @ 19 – 20 G – A, where Olatawura, JSC (of blessed memory) stated thus: “This case has brought out clearly the statutory and honest duties required of a bailiff: to serve in accordance with order of Court. Where personal service is ordered, he must serve that person personally. Where a substituted service either by pasting at the last known abode of the person required to be served, or by publication in a newspaper is ordered, any other service which is not in accordance with the clear and unambiguous language of the Court is ineffectual.
Bailiffs are officers of the Court. Any dereliction of duty in the discharge of their duties will cause unnecessary delay in the administration of justice. A false return of service on the part of the bailiff may lead to an attempt to deceive the Court. This in itself is an abuse of that order.” The initial affidavit of service deposed to by the bailiff clearly showed on its face that service was not effected in the manner stated in the order of Court. The 1st respondent deposed to facts purporting to show that the affidavit of service was false. He also averred that at 4.20pm when the processes were allegedly served on Shedrack Lawrence he was at Evangel House. The bailiff on the other hand in his further affidavit averred that the 1st respondent was not available at Evangel House when he went there to effect service; that he and the pointer, one Mr. Richard Akwoh were informed that the 1st respondent had left for the day and had gone home, which was why he went to serve the processes at 5 Mbanano Street. I agree with the lower Court that having regard to the material conflicts in the affidavits deposed to on either side, the learned trial Judge was not at liberty to pick and choose which averments to believe without calling for oral evidence to resolve same. The 1st respondent averred categorically in paragraph 16 of his counter affidavit to the affidavits of service of the bailiff that he was prepared to call witnesses to rebut the averments therein. In the circumstances of this case, the non-filing of a further affidavit to challenge the averments in the second affidavit sworn to by the bailiff, was not fatal. The 1st respondent had already sworn to facts stating his whereabouts at the time and on the day the processes were allegedly served on him and how the processes eventually got to his notice. No useful purpose would have been served by a further repetition of the same facts. It has been argued that as long as the processes came to the respondents’ attention and they appeared in Court and were represented by counsel, it would amount to enthroning technicalities on the altar of substantial justice to contend that service was not proved. With due respect to learned senior counsel, the issue here is that at the behest of the appellant, a particular mode of service was ordered by the Court. On the first day the matter came up for hearing i.e. on 17/4/2014, learned senior counsel for the 1st respondent, D.C. DENWIGWE, SAN challenged the mode of service, as the processes were dropped at Mbanano Street, two buildings away from the 1st respondent’s residence and not at the address provided in the order of Court. Thus, his appearance at that stage was under protest. Having challenged the mode of service and compliance with the order of Court the onus shifted to the appellant, and by extension, the bailiff of the Court to prove that service was effected in compliance with the order of Court. As observed earlier, the learned trial Judge could not have determined the issue without oral evidence to resolve the conflicts in the affidavit evidence on either side. I therefore agree with the lower Court that service of the originating processes was not proved. This issue is accordingly resolved against the appellant. (Kekere-Ekun, pp. 52-57). (Underlining is mine for emphasis). Also, in this same case, it was further held thus ‘Section 168 (1) of the Evidence Act, 2011 provides for the presumption of regularity of official acts. It provides thus;
“(1) Where any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” The law is trite that an affidavit of service deposed to by the bailiff of a Court stating the fact, place, mode and date of service and describing the process or document served shall be prima facie proof of the matter stated in the affidavit, See: Schroder Vs Major (1989) 2 NWLR (Pt.101)Â 3 @ 11 E – H; Okoye Vs Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335: Idisi Vs Ecodril (Nig) Ltd. (2016) LPELR- 40438 (SC). The law is equally settled that the presumption of regularity in this regard is rebuttable. A defendant who intends to challenge the affidavit of service deposed to by the bailiff must file an affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly. Earlier in this judgment I reproduced the two affidavits comprehensively deposed to by the 1st respondent. (Kekere-Ekun JSC, pp. 46-47). My Lord also held thus ‘My Lords, I deem it appropriate to commence the resolution of this issue by considering, briefly, the law governing the service of originating processes. The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in Kida Vs Ogunmola (2006) 6 SCNJ 165 @ 174 thus: service of process on a party to an action, particularly an originating process, is crucial and fundamental. See Auto Import Export v. Adetayo (2000) 18 NWLR (Pt. 799) 554; S.G.B.N v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Court’s jurisdiction was not fulfilled. To underscore the importance of service, His Lordship continued at page 175 lines 5 – 7 (supra); Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial. “The principle was re-stated in the recent decision of this Court in; Ihedioha Vs Okorocha (2016) 1 NWLR (Pt.1492) 148 @ 179 D-F by Okoro, JSC: “… I agree that it is not every non-compliance with the Rules of Court that should vitiate the proceedings. However, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Any breach of this principle (of fair hearing) renders the proceedings a nullity. See Chime vs. Onyia (2009) All FWLR (Pt. 480) 673 @ 730-731 Paras H-B; (2009) 2 NWLR (Pt. 1124) 1. See also: Skenconsult (Nig) Ltd. Vs Ukey (1981) 1 SC 6: Obimonure Vs Erinosho (1966) 1 ALL NLR 250: Craig Vs Kanseen (1943) K.B 256; National Bank (Nig) Ltd. vs. Guthrie (Nig) Ltd. (1993) 3 NWLR (Pt.284) 643. It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto.’. (Kekere-Ekun JSC, pp. 31-33). Also see the cases of: UBA PLC & ORS V. ADEMOLA (2008) LPELR-5066(CA); INEC v. DPP & ORS(2014) LPELR-22809(CA); EMERALD GARLAND BEVERAGES LTD. & ANOR v. MADUECHESI (2010) LPELR-4104(CA) and a host of other cases on the subject matter.
From the above judicial precedents showing clearly the significance of the duties (and the consequences of their failures), which (as have been observed from the case and or cases cited above) have been in breach sometimes, by some of those bailiffs. It is also surprising to discover that some of the Nigerian courts’ bailiffs are not given requisite training on their duties! Sometimes too, some of the courts do not even have bailiffs as a result of which Court’s registrars (even as lawyers) and clerks have been used though as officers of courts (but definitely not trained about the tasks/responsibilities). This gives reasons for a poor functioning as an imposed bailiff! These imposed bailiff (even as officers of courts but not trained to do the works of bailiffs) do not understand how to effect proper service (and not just service) of court’s processes. See: the case of NJOEMANA v. UGBOMA & ANOR (2014) LPELR-22494(CA) (Per IGE, J.C.A. (Pp. 31-33, paras. D-B) on what amounts to proper and improper service of court’s processes. Some of these registrars imposed as bailiff (against their will from my observation and experiences) are not happy being downgraded to the level of a bailiff to serve court’s processes! Also, there are those clerks or even registrars or bailiffs that their main interest in serving court’s processes is to make profit or gain much more money than required officially! For instance, in my humble view, charging the sum of ten thousand naira (N10,000.00) within from Kubwa High Court of Federal Capital Territory-Abuja, to Chikakore Kubwa is much more expensive and very high and corrupt! Also, requesting for the sum of five thousand naira (N5000.00) only to serve a court’s process from Federal High Court, Abuja at the Federal Ministry of Justice, Abuja or at the Federal Secretariat, Abuja, is much, illegal and corrupt! Unfortunately, the Practice Direction on Service of Process(es) at the High Court of the Federal Capital Territory, Abuja, issued by: Hon. Justice Ishaq Usman Bello, Chief Judge of the Federal Capital Territory (as he then was) having commenced on the 29th day of October, 2018, which prescribes the amount of for milage in respect of service of processes (which I encourage lawyers to ensure and enforce compliance no matter the pressures against its enforcement) has not been observed by me to have been complied with by the same court! I view, with due respect that the corruption in respect of service of court’s processes (from experiences) is even high in some of the Magistrates and Area Courts in Abuja! Though, Rules of various Courts provide that a court’s process may be served by either the bailiff or any other officer of court, nevertheless, lack of training for whoever that is engaged to serve court’s processes is fatal as either the person serves the process in a manner that violates procedural requirements or the person would negligently fail to state necessary details required on a certificate of service or affidavit of service as the case might be which is also fatal as it would cause the court not to be persuaded by counsel who has mobilized the bailiff to serve the said process due to lack of details because the discretion of the court would likely not be used by the court in this instance. For instance, I had mobilized some bailiffs to serve some court’s processes for me on behalf of my client. Those bailiffs made different efforts at different times to serve the other party but could not serve him/her. One would have expected the bailiffs to state necessary details of all the efforts they had made in serving but to no avail! Rather than that, the bailiffs only stated that ‘all efforts to serve the defendant proved abortive’. The question is whether this information provided has supplied the necessary details required for the court to dispense with serve or issue warrant of arrest?! Definitely, the court refused to issue warrant of arrest on the defendant and ordered a further attempt to serve the defendant which would require additional money to mobilise the bailiffs to serve (again)! Sometimes too, some of these bailiffs do their works (as if unhappy about their job) in such a very reckless manner! After serving, some of them would not put the endorsed copy/proof of service of the court’s process in the court’s file which would definitely cause the court to adjourn the matter till another date so that the endorsed copy/proof of service is in the court’s file (either in case of service of originating process or any other process or hearing notice)! Many of the time, nothing is done in rebuking and or disciplining those negligent and reckless bailiffs by the courts. The court would only visit its anger and or rebuke on the counsel who had (diligently) paid the bailiff to serve whereas the bailiff has failed to perform his functions! In this area, with due respect to our courts, this indulgence encourages these bailiffs to continue to take their official duties negligently! Some of these reckless and negligent bailiffs enjoy the protection of the court and if the aggrieved lawyer should complain, some of the courts would stand to defend those bailiffs (from my personal experiences) and take out the anger on the innocent lawyer! This indeed requires a review by our courts! The post judgment matters also are not spared in these flaws by the bailiffs of courts!
Finally, it is my humble recommendations that all heads of courts have to continuously checkmate the activities of bailiffs of courts and any other officers of courts assigned to serve court’s processes. Also, those courts that do not have bailiffs should be provided and for each court (at least two bailiff for each court). Also, sufficient and efficient trainings should be given to bailiffs and or any officer of court that would be used to serve court’s processes as to the manners of effecting proper service; the manner and or procedures for stating details in the affidavit/certificate of service deposed to by the bailiff or the officer; and what details are required mandatorily to be on an affidavit/certificate of service deposed to by the bailiff or the officer (and if not served but efforts were made which proved abortive, the proper manner of stating the details of efforts made, when, where, how and the sequence). Therefore, necessary disciplinary measures must be meted out on any bailiff or officer of court who fails and or becomes negligent of his official duties and having regard to the legal consequences of: non-service of court’s processes and the improperly served processes of courts as well as non-detailed information as to efforts made in the service which proved abortive as it aims at either denying the other party his right to fair hearing and thereby nullifying the proceedings and the decision taken on such proceedings and thereby embarrassing the court before the higher court or necessitating a further cost on the party mobilizing service for re-service of the process or an adjournment of the proceedings till proper service is made or the court is convinced of the efforts made to serve. Registrars of courts are lawyers and senior officers of court compared to bailiffs and so should not be downgraded to the level of having to serve court’s processes henceforth as it undermines the status of those lawyers acting as Registrars of courts! The Practice Direction on Service of Process(es) at the High Court of the Federal Capital Territory, Abuja, issued by: Hon. Justice Ishaq Usman Bello, Chief Judge of the Federal Capital Territory (as he then was) having commenced on the 29th day of October, 2018, which prescribes the amount of for milage in respect of service of processes should be enforced in the Courts to which it is applicable! These recommendations would (in my humble view) in no doubt help in the administration of justice system and ensure that justice is manifestly done!
Email: hameed_ajibola@yahoo.com
In this article: