Chief Hyacinth Mmaduagwu & Anor V. Dara Martins Ifeanyi & Ors (2016)

LawGlobal-Hub Lead Judgment Report

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. 

This is an appeal against the decision of the High Court of Anambra State, sitting at Nnewi (hereinafter referred as the Lower Court), delivered by Justice M. I. Onochie, J., on the 7th day of March, 2012.

The substantive suit was instituted by the plaintiffs/respondents vide a writ of summons dated and filed on the 11th day of October, 2010 wherein the plaintiffs/respondents sought ten (10) reliefs against the defendants/appellants. The reliefs include:
?A declaration that the purported selection of the 2nd Defendant by the 1st Defendant as the Igwe-Elect of Ukpor in Nnewi South Local Government Area of Anambra State is ultra vires, irregular and a violation of the customs, tradition and historical norms of Ukpor and is therefore null and void.?

Consequently, the 3rd and 4th defendants/appellants were duly served with the said writ of summons. However, the plaintiffs/respondents complained that they could not effect service of the said writ on the 1st and 2nd defendants/appellants as they alleged that the said defendants/appellants were

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evading service. Consequently, the plaintiffs/respondents filed a motion ex-parte on the 8th day of November, 2010 seeking for:
?AN ORDER FOR SUBSTITUTED SERVICE of the originating processes in this suit and subsequent processes in this suit on the 1st and the 2nd defendants afore-named (Chief H. Mmaduagwu & F. C. Onyimadu).?

The motion was granted by the Lower Court in the following terms:
?1. Leave is granted to the Applicant to serve the 1st and 2nd Defendants in this case by substituted means that is to say by posting all the processes meant for service on them at the entrance door of their respective country homes at Ukpor in Nnewi South Local Government Area.
2. Upon service being effected in the manner aforesaid, it shall be deemed as good service on the 1st and 2nd Defendants.?

Armed with the order of the Lower Court made above, the plaintiffs/respondents in company of the Lower Court?s bailiff, effected service on the said 1st and 2nd defendants/appellants in accordance with the order of the Lower Court. Subsequent thereto, the said 1st and 2nd defendants/appellants filed a motion on notice on

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the 21st day of February, 2011 whereby they sought for the following orders:
?1. An order nullifying or setting aside the writ of summons issued in this suit for its fundamental defect or its non-compliance with the rules in beginning the proceedings and consequently striking out the suit for being incompetent and for lack of jurisdiction to adjudicate on it.
2. An order setting aside the order of substituted service granted on 8th November, 2010 on ground of crassa suppressio veri together with any purported service allegedly effected on the basis of same.?

The ?grounds of the application? were stated therein and the said motion on notice was accompanied with affidavits, exhibit and written address in support. The plaintiffs/respondents on their own, filed counter affidavit and written address in opposition to the motion. This prompted the defendants/appellants to file further affidavits; reply address and further written address in support of the said motion on notice. After due consideration of all the processes filed before him, the learned trial judge refused to grant the defendants/appellants? application.<br< p=””

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The 1st and 2nd defendants/appellants being dissatisfied with the said ruling appealed against the same before this Court upon the following grounds of appeal. The said grounds of appeal are reproduced hereunder as follows:
?1. Error in Law
The learned trial judge erred in law when he refused or failed to apply Order 5 Rule 1 Sub Rule 1 of the High Court Civil Procedure Rules, 2006 of Anambra State to nullify, set aside or strike out the writ of summons in this suit or proceedings for non-compliance with the rules in beginning the proceedings/action and/or for want of competence and/or jurisdiction.
2. Misdirection in Law
The learned trial judge misdirected himself in law when he failed to rely on the unchallenged or further affidavit evidence of 10th October, 2011, of the 1st appellant in holding that the appellants as the 1st and 2nd defendants at the lower Court reside in Lagos not at Ukpor town and hence Lagos is their proper place or address for service for which the address of service endorsed on the writ would be set aside as being illusory, fictitious or misleading as provided in Order 4 Rule 8 of the High Court