Chief Berthrand E. Nnonye V. D. N. Anyichie (2005)

LAWGLOBAL HUB Lead Judgment Report

A. AKINTAN, JSC

The appellant, as plaintiff, instituted this action at Awka High Court in Anambra State as Suit No. AA/157/88 against the respondents as defendants jointly and severally. His claim, as set out in paragraphs 9 of his statement of claim, was for a total sum of N100,110 for damages for trespass, damages for defamation and return of money collected from him. The plaintiff and 1st defendant were businessmen while the 2nd and 3rd defendants were court bailiffs. The appellant and the 1st respondent had been involved in a High Court case for which costs were awarded by the court against the 1st respondent in favour of the appellant. There was an outstanding sum of N50 (Fifty Naira) out of the costs awarded by the court against the said 1st respondent. The 1st respondent applied to the court for a writ of fifa for the recovery of the said N50 (Fifty Naira) The 2nd and 3rd respondents were the court bailiffs assigned to carry out the order. The plaintiffs action arose from the act committed by the 2nd and 3rd defendants (now respondents) in the course of their duties as court bailiffs.

Pleadings were filed and exchanged. The defendants thereafter filed a motion in which they prayed the trial court for the following relief:-

“An order striking out this Suit for not being properly before the honourable court.”

The motion was supported by a 9 paragraph affidavit and a further affidavit both deposed to by the 1st defendant. Paragraphs 1, 4, 5, 6 & 7 of the affidavit read as follows:-

“1. That I am the 1st defendant on record in this suit.

That the 2nd and 3rd defendants are bailiffs attached to the High Court of Justice, Awka.

That I am informed by the 2nd and 3rd defendants on record who are bailiffs that no notice was served on them before the commencement of this suit and I verily believe them.

That the 2nd and 3rd defendants at all material time to the case acted in their official capacities.

That the order the defendants executed which gave rise to this action was a valid order properly signed by a High Court Judge.”

The motion was opposed by the plaintiff and to that end, he filed a 7 paragraph counter affidavit and a further counter- affidavit. Paragraphs 4, 5 and 6 of the counter-affidavit read as follows:-

“4. That there was no valid subsisting order of costs in respect of which the 1st defendant has any right of recovery.

That both the trial Judge who signed the writ of fifa after the nullification of the proceedings and the orders for costs therein and the defendant’s counsel in suit No. AA/LGE.8/88 were aware of the wrongfulness of levying execution on the invalid order, but nevertheless persisted in enforcing a claim that no longer existed.

That the plaintiff averred in paragraph 6 of his statement of claim that he demanded from the bailiffs authority for their action and they responded by showing him form 41 issued on 13th October, 1988.”