Ngozi Anyafulu V. Vincent Agazie (2004)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A. 

This is an appeal from the decision of the High Court of Justice, Enugu by Agbatah, J. in suit E/100/95 dated 17th April, 2000.

The facts that gave rise to this appeal are as culled from the only brief filed and on which the appeal was heard.

On 24th February, 1995 the plaintiff, a tenant, instituted suit No. E/100/95 against the defendant her landlord claiming N100,000.00 special and general damages for obstructing her use and enjoyment of a room in the landlord’s premises situate at 30, Nike Road, Abakpa Nike, let to the plaintiff where she ran the business of a hair salon, and injunction against further interference.

The background to this suit is that the said landlord sued the tenant for possession of the said room in the Magistrate’s Court which suit is now before this court as appeal No.CA/E/170/2001 and being impatient with the pace of court proceeding decided to annoy her out of the room by digging two holes in the room and depositing bamboo poles and cement blocks at the entrance to the said room while the suit for possession was pending.

More than seven months after instituting this action the plaintiff applied to the High Court for an order for substituted service of the writ of summons and subsequent processes on the defendant by delivering the documents to Ifeanyi Uko, Esquire, who was the landlord’s counsel prosecuting the suit for possession in the Magistrate Court. The affidavit in support of the motion showed the futile efforts made at personal service of the writ of summons on the landlord who lived outside Enugu State. The High Court granted the application on 17th October, 1995 and further ordered that such service be deemed good and proper service on the landlord (defendant). The service was effected by the court bailiff in compliance with the court’s order on 25th October, 1995. Indeed the landlord’s solicitor confirmed in an affidavit made in the proceedings that the service was so effected. The plaintiff’s statement of claim was served on Ifeanyi Uko, Esquire, on 7th February, 1996.

Order 7 rules 14(1) and 2(b) under which the High Court made the order read:-

“14(1) Where it appears to the court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the court may order that service be effected in any manner by which it appears to the court that the document is likely to come to the know ledge of the person to be served”

(2) Without prejudice to the generality of the provision of sub-rule (1) of this rule, the court may order the service to be effected either by…

(b) delivery thereof to some person being an agent of the person to be served, or to some other person, on it being proved that there is reasonable probability that the document would in the ordinary course, through that agent or that other person, come to the knowledge of the person to be served.”

(Italics for emphasis)

On the application of the plaintiff under Order 23 rules 3 and 4 of the High Court Rules, the Registrar of the court issued a notice to the defendant, served on the same Ifeanyi Uko, Esquire, fixing the case for call-over on the 13th of May, 1996.

On the said 13th May, 1996, C. J. Anyamene, Esquire, of counsel appeared for the plaintiff while the said Ifeanyi Uko, of counsel appeared for the defendant in court 5 to which the case was transferred from court 4. By agreement of both counsel, the clerk of court 5 included the suit in the list of cases for call-over on 10th June, 1996. But the court did not sit on the 10th of June, 1996 and on the further adjourned date of 24th June, 1996, on which date the clerk of court adjourned the suit to the 24th of September, 1996.

Neither the defendant nor his counsel attended court on 24th September, 1996 on which date the court ordered hearing notices to be served on the defendant personally and on Ifeanyi Uko, Esquire, of counsel, and adjourned the suit to 12th November, 1996, then to 4th December, 1996, then to 10th February, 1997 then to 13th March, 1997 on which date the court was informed by plaintiff’s counsel that the hearing notice ordered by the court was served on the defendant personally at his residence in Onitsha on 18th February, 1997. The court ordered that the bailiff who effected service should appear in court to testify at the next adjournment which it fixed for 19th May, 1997. It should here be noted that the service of the hearing notice on the defendant on 18th February, 1997 gave him notice of the pendency of this suit against him.