In the case of Akiti vs. Oyekunle (2018) LPELR-43721 (SC), the Supreme Court per Rhodes-Vivour, JSC, (Rtd) emphasized with finality thusly: “Where depositions on material facts in an affidavit are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit remain the correct position and the Court acts on them except they are moonshine.”
KEEMTECH FARM LTD. & ANOR. vs. UNITY BANK PLC(2022)LCN/16992(CA)
PRINCIPLE:
“The facts of the instant case would make one to think that the appeal by the Appellants is an afterthought on the inability of the Appellants to challenge any of the processes filed and served against them by the Respondent in the Court below. The Respondent took leave of Court and serve processes on the Appellants, the Appellants could not deny service either in the Court below or in this Court but now find it convenient on appeal to attack the contents of the Respondent’s unchallenged affidavit and even the validity of a Court granted substituted service by a written address on appeal. I do not think, this procedure conveniently created by the Appellants should succeed.
The purpose of an affidavit of service as in Exhibit ‘A’ on page 9 of the record of appeal is to prove that the process emanating from the Court has been brought to the notice of a litigant whose presence is required in Court.
Also, it is trite that where there is proof of service on a party by means of an affidavit of service sworn to by a bailiff or an officer of Court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing a counter-affidavit to controvert the affidavit of service. See Integrated Builders vs. Domzaq Ventures (Nig) Ltd. (2005) 2 NWLR (Pt. 909) 97; Fatokun vs. Somade (2003) 1 NWLR (Pt. 802) 431.
Clearly, it is now too late for the Appellants, on appeal to begin to challenge the contents of the affidavit of service and the accepted depositions of the Respondent by way of written address.
Where the opposing party does not challenge depositions in an affidavit, such evidence or depositions are uncontroverted and unchallenged they are deemed to stand as admitted and constitute the truth of the matter. See Adamu vs. Akukalia (2005) 11 NWLR (Pt. 936) 263; A-G. Lagos State vs. Purification Tech (Nig) Ltd. (2003) 15 NWLR (Pt. 845) 1; Ezechukwu vs. Onwuka (2006) 2 NWLR (Pt. 963) 151; Long-John vs. Blakk (1998) 6 NWLR (Pt. 555) 524 at 532 SC; FMCT vs. Eze (2006) 2 NWLR (Pt. 964) 221; F.G.N vs. AIC Ltd. (2006) 4 NWLR (Pt. 970) 337; Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 SC; Umoh vs. Tita (1999) 12 NWLR (Pt. 631) 427; Ikpana vs. RTPCN (2006) 3 NWLR (Pt. 966) 106; Malgit vs. Dachen (1998) 5 NWLR (Pt. 550) 384.
In the instant case, the Appellants could no longer be heard to complain after failing to file counter-affidavit against the depositions of the Respondents in relation to the Respondent’s application to sell immoveable properties or failing to react to the validity of substituted service in the Court below.
In any event, as pointed out by the learned counsel for the Respondent, there is in fact no ground of appeal in the case challenging the validity of substituted service on the Appellants by the Respondents.
The trial Court was indeed justified in all the circumstances in granting the motion of 27/7/2015.
The only issue in this appeal is resolved against the Appellants. This appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.” Per OWOADE, JCA.