Hon. Dakuku Adol Peterside V. Dr. Peter Odili, CON (2022) LLJR-SC

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

AUGIE, J.S.C. (Delivering the Leading Judgment)

Therespondent as claimant instituted an action against the appellantat the Rivers State High Court, wherein he claimed inter alia thesum of N5,000,000,000 (Five Billion Naira) as general damagesfor libel. When the originating processes could not be served onthe appellant personally, the respondent, by a motion ex-partefiled on 25/5/2016, sought and was granted leave to serve him bysubstituted means –

By pasting same on the last known address of thedefendant being No. 1, First Street, off Forces Avenue,old GRA, Port Harcourt, Rivers State.

Appellant was not in court when respondent testified on11/10/2016 and the matter was adjourned to 27/10/2016 for cross-examination. On 27/10/2016, the learned senior counsel for theappellant, who had then filed a Memorandum of ConditionalAppearance on 26/10/2016, asked for an adjournment to enable theappellant file his defence.

The appellant filed his statement of defence along with a noticeof preliminary objection. He also filed a motion on notice prayingfor:

1.An order of the honourable court setting aside theservice on the defendant, the writ of summons andall other processes filed in this suit, which werepurportedly effected by substituted means to wit: bypasting same at the last known address of the defendantat No. I, First Street off Forces Avenue, old GRA, PortHarcourt, Rivers State, for being a nullity.

2.An order setting aside the hearing and proceedingsof this honourable court in this suit on 11/10/2016for breach of the defendant’s right to fair hearing, as provided by section 36(1) of the Constitution of theFederal Republic of Nigeria 1999 (as amended).

The grounds for the application filed on 28/11/2016 are asfollows –

1.The writ of summons and the ex-parte Order of6/6/2016 have not been served on the defendant.

2.Claimant misrepresented/misstated to the honourablecourt germane and material facts, which was the basisof the grant of the Order for substituted service on thedefendant.

3.Service of writ of summons, and indeed, any processis a fundamental requirement for any court to assumejurisdiction on any matter/case.

4.Claimant represented to the honourable court that theaddress of the defendant was No. 1, First Street offForces Avenue, old GRA Port Harcourt, Rivers State.

5.The defendant resides at No. 1, First Close, off ForcesAvenue, old GRA, Port Harcourt, Rivers State.

6.That there is a clear difference between the twoaddresses to wit: No. 1, First Street, off Forces Avenue,old GRA Port Harcourt, Rivers State and No. 1, FirstClose, off Forces Avenue, old GRA Port Harcourt,Rivers State