Tesam Nigeria Limited V. South Texas Projects & Anor (2003)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

The plaintiff applied for a writ of summons in suit No. W/206/98 in the Warri High Court presided over by Akpiroroh, J. (as he then was) claiming against the defendants –
“(a) The sum of N2,452,500.00 (Two million, four hundred and fifty-two thousand, five hundred naira) being sum owed the plaintiff by the defendants and part of which sum the defendants promised to pay on or before the 29th day of May, 1998 at Warri – a place within the jurisdiction of this Honourable Court.
(b) Plaintiff also claim (sic) the sum of 20% interest of the money owed the plaintiff by the defendants until same is liquidated by the defendants or judgment is delivered.

The defendants have refused, failed and or neglected to pay the above stated sum despite repeated demands for same by the plaintiff.”

On the same day that the application for the writ was made, the plaintiff filed a motion ex parte praying for the following reliefs viz:
“1. An order entering suit No. W/206/98 filed by the plaintiff/applicant herein on the 24th day of July, 1998, for hearing in the undefended list of this Honourable Court.

2. An order attaching the naira equivalent of the sum of N2,452,500.00 (two million, four hundred and fifty-two thousand, five hundred naira) from Chevron (Nigeria) Limited out of the $60,327 being monies currently standing to the credit of the defendant with Chevron (Nigeria) Limited.

3. An order directing Chevron (Nig.) Limited to pay forthwith the naira equivalent of the sum of N2,452,500.00 (Two million, four hundred and fifty two thousand, five hundred naira) to the Registrar of this Honourable Court out of the sum of $60,327 (sixty thousand, three hundred and twenty-seven US Dollars) being monies standing in credit due and payable to the defendant (sic) by Chevron (Nig.) Limited pending the determination of the motion on notice.”

The motion was supported with a 34 paragraph affidavit and several annexures. The motion was taken and all the prayers were granted. The suit was therefore entered under the undefended list.
Subsequently on 5th August, 1998 judgment was entered in favour of the plaintiff for the amount and interest claimed with N3,500.00 as costs. The defendants who got to know that judgment had been given against them through a tip off by an anonymous source later filed a motion dated 20/8/98 praying the court to set aside the judgment delivered on 5/8/98. The application and two other applications were heard by Narebor, J. and in a considered ruling delivered on 26/1/99, he declared the judgment, orders and the entire proceedings a nullity for want of service of the relevant processes including the writ of summons and thereby set aside the said judgment and other incidental orders. The plaintiff was aggrieved and appealed against the entire decision.

Three grounds of appeal were filed. As objection was taken to the grounds of appeal (even if improperly taken), I shall reproduce them and they are as follows:-
“Ground 1

The learned trial Judge erred in law when he made an order striking out the suit for want of jurisdiction, when there was no prayer seeking for such relief in the motion paper of the defendants/respondents.

Particulars of error
There was no prayer in the motion paper urging the Honourable trial Judge to strike out the suit for want of jurisdiction.

Ground 2
The learned trial Judge erred in law when he held that the suit be struck out on the ground that there was no proper service on the defendants/respondents.

Particulars of error
1. There was no application setting aside the order of substituted service made on the 28th of July, 1998.
2. That the order for substituted service made on the 28th of July, 1998 is still subsisting and has
not been set aside by any order of court.

That the defendants/respondents became aware of the suit when they were served by the order of substituted of (sic) service made on the 28th day of July, 1998.

Ground 3
The learned trial Judge erred in law when he held that the judgment delivered on the 5th day of August, 1998 be set aside.