Felix Dickson V. Chief Marcus Okoi & Ors (2002)

LawGlobal-Hub Lead Judgment Report

DENNIS ONYEJIFE EDOZIE, J.C.A. 

This is an appeal against the ruling of the Calabar High Court delivered on 5/10/98 by Uke, J. in which he declined to set aside the judgment of the same court in the same suit No. C/120/96 delivered on 16/12/97 by Onnoghen, J. as he then was. The facts which gave rise to the suit are not relevant for the determination of this appeal to warrant a comprehensive statement thereof. Suffice it is to say that the case arose from the offence of obtaining money by false pretences allegedly committed against the plaintiff herein 1st respondent by the 1st, 2nd and 3rd defendants and designated in this appeal as 2nd, 3rd respondents and appellant respectively. For clarity and avoidance of confusion, the parties are henceforth to be referred by their descriptions in the court below. The three defendants acting in concert through a letter purportedly written by the plaintiff’s brother resident in the United States of America falsely represented to the plaintiff that his said brother had directed him to clear from the Calabar Sea-port certain goods for a cold room shipped to the plaintiff who was shown fake clearing documents and a fake 40ft container in respect of the goods. Believing in the representation, the plaintiff paid over to the defendants at the latter’s request a total sum of N1,025,000.00 (One million and twenty five thousand naira) only. It is to recover this colossal amount after discovering the falsity of the representation and reporting the matter to the police that the plaintiff on 5th March, 1996 commenced the suit against the three defendants from whom he claimed jointly and severally the sum of N1,025,000.00 being money received by the defendants from the plaintiff for a consideration that never passed together with interest on the said amount from 29/6/95 till judgment.

In the prosecution of the action, the plaintiff by an ex-parte application sought and was granted leave of the court for the writ of summons, statement of claim and all subsequent processes in the case to be served on the 2nd and 3rd defendants through the 1st defendant. It would appear that upon being so served, the 1st defendant by his counsel entered a memorandum of appearance and filed a motion seeking to set aside the order for substituted service which motion however was struck out on 30/6/96 for want of diligent prosecution by the then Chief Judge E. E. Arikpo from whose court the matter was subsequently transferred to Onnoghen, J. (as he then was) who on 21/4/97 ordered that hearing notices be issued to the defendants. That order was carried out. As the plaintiff had become aware of 3rd defendant’s address, he in addition made arrangement for the 3rd defendant to be served personally. However, when the bailiff went to serve the 3rd defendant, the latter declined service.

On 22/10/97 and 13/11/97, the court in the absence of the defendants took the evidence of the plaintiff and in a considered judgment delivered on 16/12/97 entered judgment in his favour for, inter alia, the amount claimed with interest at the rate of 15%, thereon from 19/6/95 till judgment and N10,000 costs.

The plaintiff executed the judgment on the property of the 3rd defendant and in consequence the 3rd defendant by a motion on notice filed on 13/5/98 prayed the court for:-

“1. An order suspending execution of the judgment of this court dated 16/12/97.

2. An order extending time for the 3rd defendant/applicant to apply to set aside the judgment of this court.
3. An order setting aside the judgment of this honourable court for being a nullity.
4. An order releasing the vehicles attached pursuance (sic) to the judgment of this court to the 3rd defendant/applicant.”

The motion was supported by a 14 paragraph affidavit sworn to by the 3rd defendant. In opposition thereto, the plaintiff deposed to a counter-affidavit of 15 paragraphs. Between 25th and 28th of July, 1998 the court took arguments from counsel and in a reserved ruling delivered on 5th October, 1998 Uke, J. dismissed the application with N1,000 costs in favour of the plaintiff.

It is against that ruling that the 3rd defendant has lodged the instant appeal predicated on only one original ground of appeal to which were subsequently added three additional grounds of appeal vide the amended notice of appeal filed on 8/5/2001 with the leave of court.

The 3rd defendant and the plaintiff filed and exchanged briefs of argument while the 1st and 2nd defendants remained unconcerned in the matter. In the 3rd defendant’s brief of argument, the following three issues were set down for the determination of this court, viz:-

“1. Whether the service of a copy of originating processes on the 3rd respondent (1st defendant) and he refusing to accept service on behalf of the appellant (3rd defendant) inspite of an order of court would amount to service of the originating process on the appellant? (3rd defendant).

2. Whether the non-service of the hearing notice ordered by the court on the appellant (3rd defendant) did rob the trial court of jurisdiction to hear and determine the suit as it relates to the appellant? (3rd defendant).
3. Whether the 3rd respondent (1st defendant) who was jailed and serving prison sentence could have been an agent for the appellant? (3rd defendant).”

For the plaintiff, the issues for consideration were identified to be as follows:-

“1. Whether the learned trial Judge was correct in holding that there was service of the processes on the defendants – appellant, 2nd and 3rd respondents?

2. Whether the learned trial Judge was correct in dismissing the appellant’s (3rd defendant’s) application?”

With respect to the 3rd defendant’s/appellant’s first issue for determination, it was pointed out in the appellant’s brief, that pursuant to the order for substituted service granted by the court below, the processes in the suit at the court below were taken for service by the bailiff who served only one copy of the writ of summons and statement of claim on the 1st defendant without the order of court directing that the service on the 2nd and 3rd defendants be made through him. It was contained that the 1st defendant having refused to collect the processes on behalf of the 2nd and 3rd defendants as evidenced in the record of proceedings in magistrate’s court where the 1st defendant was charged and tried for offences connected with the service, the service so effected cannot by any stretch of the imagination be said to be in compliance with the order of the court.

It was submitted that the non-service of originating summons on the opposing party robs the court of the jurisdiction to adjudicate over the matter the subject-matter of that originating summons. The case of N.B.N. Ltd. v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 643 at 659 – 660 was cited and relied upon.