IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP HONOURABLE JUSTICE M. A. HAMZA

DATE: 29^TH JANUARY, 2026                                     

SUIT NO: NIC/PHC/62/2024

 

BETWEEN

NIGERIAN SOCIAL INSURANCE 

TRUST FUND MANAGEMENT BOARD         CLAIMANT/RESPONDENT/

                                                                                 JUDGMENT CREDITOR 

AND

SONABEL MEDICAL CENTRE ……………. DEFENDANTS/APPLICANTS/

                                                                                 JUDGMENT DEBTOR

 

REPRESENTATION:

Innocent Eremionkhale for the Claimant/Respondent/Judgment Creditor

Cosmas Akuneho for the Defendant/Applicant/Judgment Debtor

 

RULING

Introduction:

An order setting aside the judgment entered on behalf of the Claimant in default of appearance of the Defendant on the 10th day of February, 2025.

a.   An order setting aside the Garnishee Order Nisi made on behalf of the Claimant against the Defendant on the 7^th day of July, 2025.

b.   An omnibus Prayers.

2. The application was predicated upon the beneath grounds:
   1. On the 10^th of February, 2025 this Honourable Court entered a default judgment against the Defendant in this suit.
   2. This Honourable Court in the "Introduction and Reliefs” stated as follows: "The Claimant filed this Originating Summons against the Defendant dated the 12^th day of December, 2022 together with accompanying processes seeking for the determination of the following questions;…”
   3.  The said Originating Summons and other Courts' processes dated the 12^th day of December, 2022 were not served on the Defendant as required by law.
   4. The said Originating Summons dated the 9^th day of September, 2024 and other Courts' processes were not also properly served on the Defendant as required by law. 
   5. That no Originating process in this action was served on the Defendant/Applicant/Judgment Debtor as prescribed by law. 
   6. There was a breach of fair hearing as the Defendant/Applicant/ Judgment Debtor was neither heard nor given an opportunity to be heard before the Order of Court dated the 10^th day of February, 2025 and 7^th July, 2025 were made by this Honourable Court. 

In reaction, the Claimant/Respondent/Judgment Creditor deposed to a Counter-Affidavit dated the 13^th day of November, 2025 accompanied by a Written Address dated the same date.

 

Submissions of the Defendant/Applicant/Judgment Debtor 

         Whether from the Circumstances of this case the Defendant was properly served with the Originating processes in this case. 

“if the Person is a company or other body corporate, by serving a copy of the document or process on a senior

or a responsible employee of the company or body

corporate at its registered office or at its principal

place of business within the Federation, or its main

place of business within the Judicial Division in which

the dispute first arose or, if there is no employee

willing to accept service, by affixing a copy of the

document or process to the main door of the

office or Place of business or by posting same on the

wall or the fence of the residence or place of

business."

5. He further submitted that the non-existent Juliet N (HR) Cannot be described or accorded the status of a senior or a responsible employee of the Defendant. That it would be the height of a misnomer to accord her with such an inappropriate designation. That the Defendant had indubitably demonstrated in his affidavit evidence that the department of “Human Resources" is non-existence in the Clinic.

6.      He submitted also that, having regard to the entire circumstances of this case, the Court was not right in proceeding to enter judgment in default of appearance of the Defendant. Stating that it is the inalienable and constitutional right of any person against whom proceedings are pending in a Court to be duly informed or put on prior notice of the proceedings and be given opportunity to be heard and defend himself in the case or complaint against him - Citing Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

7.      It was further submitted that the principle of fair hearing is founded on the pillars of (a) Notice and (b) opportunity. This is notice to the Defendant of the complaint against him and the opportunity to be heard in the determination of the complaint against him. That a violation of either of these two requirements renders the proceedings and any judgment arrived at a nullity and liable to be set aside, no matter how erudite or sound the judgment is. He referred the Court to the case of AMON V. SURU WORLDWIDE VENTURES (NIG.) LTD (2024) 18 NWLR (Pt.1970) 355 SC, 416; APUGO V. UGOJI (2022)16 NWLR (Pt.1857)  

8. He posited that on the validity of this default judgment and application to set it aside, Order 35 (7) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 states thus; "Any judgment by default whether under this order or any order of these Rules shall be final and remain valid and may only be set aside upon application to the Court on grounds of fraud, non-service of processes, lack of Jurisdiction, and upon such terms as the Court may deem fit."; Citing E. H. IDISI V. ECODRIL (NIG.) LTD (2016) All FWLR (Pt.850)1016 ratio 2, where the Court held that it is the duty of the Court to satisfy itself that the Originating processes in the case was actually served on the party where service is disputed before adjudicating there on. That when there is no service on the Defendant, the fundamental rule of natural Justice of audi alteram partem is breached. Referring to JOE-DEB VENTURES LTD V. N⋅D⋅I.C. (2015) All FWLR (pt. 780)1322 ratio 2,; SKENCONSULTS (NIG.) LTD V. UKEY (1981) 1 SC 6, and MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374. 

9.      It was argued finally that failure to serve processes where service is required is a fundamental vice and deprives the trial Court of the necessary competence and jurisdiction to hear the suit. Citing EMEKA V. OKOROAFOR (2017) 1 NWLR (Pt.1577) 410 SC 460-461, and IHEDIOHA V. OKOROCHA (2016) 1 NWLR (Pt. 492) 148 SC 179 Para C-D. He urged the Court to resolve the issue in favour of the Defendant/Applicant/Judgment Debtor and set aside the judgment. 

Submissions of the Claimant/Respondent/Judgment Creditor 

10.    Learned Counsel to the Claimant/Respondent/Judgment Creditor submitted sole issue for determination to wit:

Whether the Defendant/Applicant/Judgment Debtor has discharged the legal burden of proving non-service, or shown sufficient reason and good faith to warrant the setting aside of the default judgment.  

11.    He submitted that the Defendant/Applicant has failed to rebut the presumption of regularity and the Defendant/Applicant’s past deliberate evasive conduct to support the fact that their claim of non-service must be viewed in the context of their documented history of evasion, which shifts the character of their default from accidental to intentional and reckless. That was deposed to in Paragraph 4 of the Counter-Affidavit, the Defendant/Applicant has a consistent habit of evading service of the Claimant/Respondent’s official correspondence, including the Pre-Action Notice, which they refused to honour even when served by Registered Mail. That this Pattern demonstrates that the claim of non-service of the Originating Summons is not a genuine complaint, but a calculated and intentional strategy to frustrate the judicial process and delay the payment of a legitimate statutory debt, as there are evidence/proof of the Defendant/Applicant deliberate acts of refusing service.

12.    It was further submitted that as a general rule, the setting aside of a judgment obtained in default of pleading or appearance is at the discretion of a Court, but such discretion must be exercised judicially and judiciously – Citing AKINNULI V. AJO-ODUGBESAN (1992) 8 NWLR (Pt.258) 172 Page 189, Para H.; LASACO ASS. PLC V. DESERVE SAVINGS LOANS LTD (2012) 2

NWLR (Pt.1283)95, while referring to DIN V. A-G. FED. (1988), NWLR (Pt.17) 471, where the Court held that: "If a judgment has been irregularly obtained against a Defendant, such Defendant is entitled ex debito Justitiate to have it set aside. However, before an applicant can have a default judgment obtained against him set aside, such an application must show that: there are good reasons for his failure to (a) appear; there was no undue delay making the (b) application; (c) the successful party would not be prejudiced; the applicant's case is not manifestly (d) unsupportable, and the altitude of the applicant right from the service of the writ till the day of judgment is such as to warrant the discretion being exercised in his favour."

13.    Similarly, it was posited that as shown in its Counter affidavit, the Defendant/ Applicant's failure to appear and defend the suit was due to a deliberate choice to ignore legal processes, they are disentitled from the exercise of judicial discretion. The Defendant /Applicant failed to fulfill the first condition as stated by the Appeal Court in LASACO ASS. PLC V. DESERVE SAVINGS LOANS LTD (Supra) and therefore cannot be entitled to the judicial discretion they seek by their application. In the case of WILLIAMS V. HOPE RISING VOLUNTARY FUND SOCIETY (1982) 1-2 SC 145, where the Supreme Court held that “a party seeking to set aside a default judgment, must show

that their failure was not intentional or reckless. Given the evidence of prior evasion of the Pre-Action Notice, the Honourable Court Should find that the Applicant's default was intentional and reckless”. 

14.    Counsel submitted that the argument of the Defendant /Applicant that the employee, Juliet N. (HR), is "unknown, strange and alien" is a mere denial that fails to displace the Bailiff's presumption of regularity. In the Case of SO MAI SONKA CO. (NIG.) LTD V. ADZEGBE (2001) 9 NWLR (Pt.718) 312 at p. 324, Para D, the Court of Appeal established that; "Where service of any writ or document had been effected by a Bailiff or other officer of the Count, an affidavit of service sworn to by that Bailiff or other officer shall on production without proof of signature be prima facie evidence of service". Evidence shows that this same Juliet N. (HR) has in the past taken delivery of an official letter from the Claimant/Respondent, which the Defendant/Applicant acknowledged by their response to the received document WITHOUT DENYING Juliet N. Thus, a mere denial of service in an affidavit or oral evidence is not enough to set aside the service or the judgment founded upon it. The reason being that Juliet N is certainly a responsible officer of the Defendant/Applicant having been impliedly acknowledged as such by the Defendant/Applicant and therefore fulfilled the requirement for service of Originating process as provided is Order 7 Rule (1) (h) (i) of the National Industrial Court of Nigeria (Civil procedures) Rules 2017. That a mere denial of service in an affidavit or oral evidence is not enough to set aside the service or the judgment founded upon it.

15.    Counsel submitted that evidence has shown that the Defendant/Applicant lacks good reason for failing to participate in the proceeding that led to the judgement which they seek to set aside and consequent upon that the long delay in bringing their application is unjustifiable, and that the Claimant/Respondent will suffer manifest Prejudice by the grant of the Defendant/Applicant’s application given that the long period that has elapsed between the date the judgment was delivered being the 10^th day of February, 2025 and the date the application is brought to have it set aside, a lot of activities have intervened and costs incurred including the initiation of the Garnishee proceedings currently ongoing before this Court. Counsel further argued that a party cannot seek to reply only on a technicality (non-service) without showing that the substantive suit is defendable. 

16. In response to the Defendant/Applicant's contention that the Garnishee Order Nisi breaches the right to fair hearing is legally flawed in the sense that as an interim order made Ex-parte, its validity is undisputed, as confirmed by the Court of Appeal in the case of N.A.O.C. LTD V. OGINI (2011) 2 NWLR (Pt. 1230) 131 CA. That the Defendant/Applicant’s right to be heard is reserved for the Order Absolute stage and the Defendant/Applicant was duly served as averred in paragraph 6 of the Counter-Affidavit. 

17.    Counsel submitted finally that the Defendant/Applicant has failed to meet the required legal threshold, and their application is tainted by a deliberate pattern of evasion, which has shown a clear lack of good faith in dealing with the Claimant/Respondent and the judicial process, and urge the Court to dismiss the application of the Defendant/Applicant/Judgment Debtor with substantial cost. 

 

Reply on Points of Law

18.    In his Reply on Points of law dated 4^th day of December, 2025, the learned Defendant /Applicant/Judgment Debtor's Counsel submitted that an Originating process in this case, Originating Summons is not just an ordinary document like any other official document. That its mode of service is regulated as prescribed by law and it must be followed strictly and should not be treated with levity and unless and until the Court satisfies itself that a party to a case who ought to be served with an Originating process is duly served, the entire proceedings is inchoate or legally non-existent. That Juliet N. is not known to them, that since the Claimant/Respondent states in their Counter-Affidavit that Juliet N. is a responsible employee, that the onus is now placed on the Claimant/Respondent to prove that Juliet N (HR) satisfied the condition and is therefore qualified to receive Originating Process on behalf of the Applicant as stipulated in Order 7 (1) (h) (i) of the National Industrial Court of Nigeria (Civil procedure) Rules 2017. He referred the Court to Section 131 of the Evidence Act. 

19.    Counsel argued that assuming there is Human Resources department, then the question is whether Juliet N. (HR), is a Cleaner or Messenger in HR department. That even if she received the process and transmitted it to the proprietor, she was not competent to do so as prescribed by the Rules of this Court. Citing the case of DAUPHIN NIG. LTD V. M.A.N (2001) F.W.L.R (pt.47) 1127 Particularly 1136, Para B. Counsel submitted further that the policy of the Department is that all senior or responsible staff who receive any document on behalf of the Applicant must sign their signature and indicate their rank or position on the paper received. 

20.  It was also submitted that the case of LASSACO ASS. PLC. V. DESERVE SAVINGS & LOANS LTD (supra) which the Claimant/Respondent heavily relied upon is not applicable in the instant case. That what was in issue in that case was the exhibition of lack of diligence by the Defendant and his Counsel 6 years after the Originating process was duly served on him. The Court stated at page 115 paragraph C thus; “The behaviour of the Defendant and a fortiori his Counsel, Smacks of recklessness and lack of diligence in the Prosecution of his matter. Accordingly, in my view, the learned trial judge was right in refusing the Application to set aside the default judgment of Honourable Justice Kessington, as the affidavit evidence relied upon by the appellant does not avail him.”

21.    Counsel submitted that before the Court’s jurisdiction can be invoked on a party sued, is due service of the originating process on the party, and that without proper service or lack of service of the Originating process on the Defendant robs the Court of Jurisdiction to entertain the matter and enter judgment against the defendant. He referred the Court to the cases of ESEZOOBO- V. SHABA (2018) ALL FWLR (pt.949) 1505 at 1540 paras C-D at 1541 Paras A-B.; N.I.P.S.S V. KRAUS THOMPSON ORG LTD (2001) FWLR (Pt. 45) 702 at 715 paras G-H, that an affidavit of service is only to be taken as a proof of service. That it is not conclusive proof of service in that whenever such proof of service is challenged in Court by an affidavit or other cogent evidence, the Court must decide the fact of service on available evidence furnished by all the parties.

 

COURT’S DECISION

22.    I have painstakingly considered the Motion on Notice dated 6^th October, 2025, the affidavit in support, the Counter-Affidavit of the Claimant/Respondent, the respective Written Addresses of learned Counsel on both sides, as well as the Reply on Points of law. The Court hereby formulates the lone issue for the determination as it is the thrust of action. Other ancillary issues may be subsumed in the determination of this suit to wit:

Whether in the circumstances of this case the Defendant/Applicant has shown sufficient legal basis to warrant setting aside the default judgment and consequential Garnishee proceedings. 

23.    It is imperative to say that the crux of the application is not much in doubt in the sense that the Applicant sought for the Court to set aside the Default judgment entered by this Court on the alleged ground of non- service of the Originating processes on the Defendant/Judgment Debtor. Meanwhile, It is well settled that a judgment entered under the Undefended list procedure is a judgment on the merits of the case even where the Defendant failed to attend the matter provided there is service of the processes on him. 

24.    Being a judgement on the merit, the remedy open to the aggrived party is to go on appeal not to apply for an Order to set aside the Judgement. however, where the failure of the Defendant to take the necessary steps to define the action .............. from a fundamental defect in the proceeding leading to the judgement, such as non-service of the originating processes on the Defendant which defect robs the Court the jurisdiction to entertain the matter, thus, the aggrieved party can appeal against the judgement or apply under the inherent jurisdiction of the Court to have that judgement set aside on the ground of absence of jurisdiction. See DANIEL VS INSIGHT ENGINEERING CO. LTD (2002) LPELR - 43120 (CA). I believe strongly that this is the basis upon which the application is predicated upon.

 

25.    A critical evaluation and analysis of the paragraphs of Affidavit of the application one can conveniently justify his resentment on the issue of non-service of the originating processes to the Defendant in this matter. meanwhile, the importance of service of originating process cannot be overemphasised. this is because it is the service of an originating process on a Defendant that confers the Court with jurisdiction to adjudicate on the matter. See OKEKE VS LAWAL (2018) 12 NWLR (PT. 1634) 393; LABOUR PARTY & ORS VS OKO & ANOR (2022) LPELR - 58649 (CA).

 

26. That is why Order 7 Rule 1 (1) of the National Industrial Court (Civil Procedure) Rule, 2017 provides as follows:

“Any process or document required or authorized by these Rules or ordered by the Court to be served on any person who is a party in a matter may be served as follows:

1. by handling a copy of the process or document to the person or to the person's Counsel or 
2. by leaving a copy of the process or document at the person's or the person's Counsel residence or place of business;
3. by leaving a copy of the document or process at the person's place of employment.
4. by sending a copy of the documents or process by registered post or courier to the last known address of the party or the party's Counsel.
5. if the person is a company or other body corporate, by serving a copy of the documents or process on a senior or a responsible employee of the company or body corporate at its registered office or at its principal place of business within the jurisdiction or its main place of business within the Judicial Division in which the dispute first arose or if there is no employee willing to accept service, by affixing a copy of the document or process to the main door of the office or place of business or by posting same on the wall or the face of the residence or place of business.

 

27.    It is within the contemplation of the Applicant which is being a corporate company was never been saved with any of the originating process pertaining to this suit. It only became aware when it made several attempts to access its Bank Account but to no avail. upon enquiry from the account Officer checked and explained to him that there is a ........ Debit placed on the Defendant's account consequent upon a Court Garnishee Order Nisi served on the Bank. see paragraphs 4 and 5.

 

28.    Sequel to the above foregoing that the Defendant's Counsel upon diligent and consentient search discovered that this Court delivered Judgement in this suit on behalf of the Claimant in default of appearance of the Defendant on the 10th day of February, 2025 and consequent upon the Motion Exparte filed on the 28th day of March, 2025, made a Garnishee Order Nisi against the Defendant on the 7th day of July, 2025. See page 87.

 

29.    On their part, the Claimant/Judgement Creditor/Respondent argued that there was service of the originating summons in this suit properly effected on the Defendant/Judgement Debtor/Applicant on the 10th day of October, 2024 through an Adult and responsible person found on his premises and identified as Juliet N., a Human Resource (H.R) Personnel as evidenced by the Affidavit of Service in the Court's file. See Exhibit NSITF 3 and Affidavit of Service deposed to by the Bailiff of this Court dated the 10th day of October, 2024 - Exhibit NSITF 4.

 

30.    Flowing from the above divergent position as taken by the parties, it suffice saying that the Applicant is a Corporate Entity which requires services of any originating process is to be effected in accordance with Order 7 Rule 1 (1) of the Rules of this Court, 2017. similarly, Section 78 of the Companies and Account Matters Act provides that a Court process be served on a Company by leaving it at or sending it by the post to the registered office or head office of the Company.

 

31.    The question that calls for determination at this juncture is whether there was proper service on the Applicant of the originating processes or not. In line with the principle of he who asserts shall prove. See IMAN VS SHERIFF (2005) 4 NWLR (PT. 914) 80. The Applicant argued that the said Juliet N.  (HR) who was alleged to have been served with the originating processes was neither a staff of the Defendant/Applicant nor even known to her. See paragraph 8 of the Affidavit in support. See also the Affidavit of Service deposed to by the Bailiff of this Court, one Ochikiri Gabriel.

 

32.    perhaps, the burden is now shifted to the Respondent to prove otherwise that the said Juliet N was a staff of the Applicant. Everything the Respondent have deposed in various paragraphs of the Counter that she is a staff with the Applicant, it is not upso facto conclusive prove. There shall be more to that.

 

33.    notwithstanding the above foregoing, however, the question is how is service proved? The question is answered in the case of AG ANAMBRA STATE & ORS VS EPHRAIM OKEKE & ORS (2002) 5 SC (PT. 1) 58. An Affidavit of Service of a Court is normally a non-contention document required to be put on record for information of the Court the parties as to the fact and date of service of a process in the proceeding, the question arises whether or not a process has been served in the proceeding, it will be a strange thing were the Court to ignore the proof of service effected by its own record in the proceeding and hold that such process has not been served. Per Barka JCA in the case of EMMEZE & ORS VS GOVERNOR OF DELTA STATE & ORS (2014) LPELR – 23201 (CA).

 

34.    Infact, the Affidavit sworn to by the Bailiff is a pina facie evidence of proper service of the process. See BELLO VS NATIONAL BANK OF NIGERIA (1992) 6 NWLR (PT. 240) 206. Similarly, the burden of proof of service does not lie with the Applicant where Affidavit of Service has been sworn to by the Bailiff, the presumption is that proper service has been affected. According to the Court of Appeal, this procedure neither affects Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria nor Section 127(1) of the Evidence Act. See INTERNATIONAL BANK FOR WEST AFRICA VS SASEGBON (2007) LPELR – 8240 (CA).

 

35.    Perhaps, Exhibits NSITF 9 dated the 19^th day of November, 2024, NSITF 11 dated the 27^th day of November, 2024 and NSITF 12 dated 28^th day of March, 2025 were all Affidavits of Service as rightly deposed by the Bailiff of this Court, one Miller Benjamin Brown. The content of the deposition contained therein, where all to the effect that on several occasion when he attempted to serve the Respondent in the premises of the Applicant, her reasons for refusing to collect services remained synomous that she hadn’t been instructed to do so from the management. In all these occasions the Bailiff used to drop same in the premises and departed accordingly in line with the Rules of this Court and that of the Sheriff and Civil Process Act.

 

36.    if that is settled, it is my considered opinion that there were sufficient and constructive notices of the pendency of this suit against the Applicant but decided to remain apart with the proceeding. Therefore, he cannot complain denial of any fair hearing. It was not about Juliet N, the Receptionist or not in the Applicant’s Company premises. It was whether there was a proper service of the Court processes pertaining to this suit on the Applicant.

 

37.    Thus, the companies and Allied Matters Act, by Section 78 makes a provision as to how to effect service of documents generally. By this, a Court process is served on a company in the manner provided by giving the Writ to any Director, Trustee, Security or other principal Officer at the registered office of the company or by leaving at its office. The need for substituted service arises because personal sevice cannot be effected and since personal service can only be effected on natural or justice person, the procedure for substituted service cannot be made to a limited liability company like the Applicant. See GITTO CONSTRUCTION GENERAL VS UDOIUEN (2015) LPELR – 48147 (CA).

 

38.    The Applicant has never denied that its registred address is situate at No. 14 Onwabia Rad, Mile 4 Wimpey Market Road, Orazi, Port Harcourt rather it confirmed same in paragraph 9 of its Affidavit in support of this application. If that is settled, then the conclusive presumption was that the Applicant was on notice of this suit.

 

39.    In conclusion, the Supreme Court per Niki Tobi JSC as he then was, on when a Court will set aside its own Judgment given in the absence of one party before it in order to give him an opportunity of being heard, set out the following different condition that can apply:

         a)  The reasons for the Applicant’s failure to appear at the hearing or trial of the case 

   in which Judgment was given in his absence.

         b)  Whether there has been undue delay in making the application to set aside the

       Judgment so as to prejudice the party in whose favour the Judgment subsists.

c)  Whether latter party (i.e. in whose favour the Judgment subsist) would be prejudice) or embarrassed upon an Order for rehearing of the suit being made so as to render such a course inequitable.

d)  Whether the Applicant’s case is manifestly unsupportable. See TENO ENGR. LTD VS ALHAJI ADISA (2005) 10 NWLR (PT. 933) 346; NWOKO VS AZEKWO & ORS (2011) LPELR – 42030 (CA).

 

40.    In fact, the Applicant has failed in totality to establish one or more of the above reasons. In the circumstance, I find no merit in the application and it deserves but a befitting burial. Accordingly, it is hereby dismissed.

 

 

-------------------------------------

Hon. Justice M. A Hamza

Judge