Kalu Mark & Anor. V. Gabriel Eke (2004)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

Gabriel Eke, the respondent herein was the plaintiff before the High Court of Abia State in the Aba Judicial Division holden at Aba, when he claimed against the appellants herein as the defendants jointly and severally as follows:

“The plaintiff claims against the defendants jointly and severally the sum of N1,992,255.16k (One million nine hundred and ninety two thousand, two hundred and fifty five naira and sixteen kobo) being money had and received by the defendant for a consideration that has failed.”

The plaintiff filed along with the writ of summons the particulars of claim thus:

“(1) The plaintiff is a businessman and resident at Aba and his office at No. 86 Azikiwe Road, Aba within the jurisdiction of this honourable court.

(2) The first defendant is the Managing Director and Chief Executive of the 2nd defendant which has its registered office at 102 School Road, Aba within the jurisdiction of this honourable court.

(3) The plaintiff claims against the defendants jointly and severally the sum of Nl,992,255.16k (One million nine hundred and ninety two thousand, two hundred and fifty five naira and sixteen kobo) being money had and received by the defendants for a consideration that has failed.”

Following Order 23 High Court (Civil Procedure Rules) 1998 of Imo State, applicable in Abia State, the plaintiff applied to have the writ placed under the undefended list. The plaintiff accompanied the application with an affidavit and the learned trial Judge placed the plaintiff’s claims under the undefended list.

By an ex-parte motion dated the 8/11/1993, the plaintiff successfully obtained leave of the trial court to serve the writ of summons and all other relevant court processes on the defendants by substituted means that is to say by “pasting same at the door of the office of the defendants at No.102 School Road Aba, or by delivering same on any adult employee of the 2nd defendant at the office of the 2nd defendant at No. 102 School Road, Aba.” On the 23rd November 1993 a bailiff of the High Court, Aba deposed to an affidavit of service on the defendants as follows:

“Make Oath and say that on the 23rd day of November, 1993 at 11.30 a.m., I pasted upon the defendant’s doors the writ of summons/statement of claim, a true copy whereof hereunto annexed issued out of this court, High Court Registry, Aba upon the defendant by pasting the same personally to the defendants’ address No. 102 School Road, Aba ….”

The return date earlier ordered by the court was 7/12/1993. It was however on the 16/12/1993, that the plaintiff moved the trial court that since the defendants were not in court, to enter judgment in favour of the plaintiff. Hon. Justice G.D. Kalunta granted the prayer and entered judgment as follows:

“The suit which was brought on the undefended list was served on the defendants by pasting at the last known address at No. 102 School Road, Aba. The suit was served on the defendants on the 23/11/1993. After service of the writ of summons, none of the defendant(s) sic filed an intention to defend the suit consequently counsel for the plaintiff has now applied for judgment. After a careful consideration of the affidavit filed in support of this claim, I am of the view that the defendants have no defence. I will therefore enter judgment for the plaintiff in the sum of N1,992,255.16 being money had and received by the defendants for a consideration that has wholly failed.”

The plaintiff subsequently applied for the execution of the judgment and on Friday, 7th January 1984, the execution was levied on the defendants’ properties in the presence of the plaintiff accompanied by the court bailiffs and several policemen. After the execution, the defendants filed an application in the court of trial seeking to set aside the judgment and the execution, claiming that they were never served with the writ of summons and that they only became aware of the suit when the writ of Fifa was served on them. The motion filed on the 10/1/1994 prayed for the following reliefs:

“1. Setting aside the judgment of this Honourable Court in this suit delivered on the 16/12/1993 as the defendants were not served with any summons or process in the suit whatsoever before judgment was obtained.