Barr. Peter Offiah V. Chief Nnamdi Offiah & Ors (2016)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

 The 1st to 3rd Respondents are plaintiffs in Suit No. HOW/133/2011 pending at the High Court of Imo State, Owerri Division. The Appellant and 4th Respondent are defendants in the suit.

The writ of summons in this suit issued on 17-5-2011. In paragraph 32 of the statement of claim filed the same date the plaintiffs claimed of the defendants as follows: –
?1. Declaration that the claimants are the authentic and recognized managers of the Estate of Late Chief Greg I. Offiah comprising of a two storey building situate at No. 25 Douglas Road Owerri Imo State, a one storey situate at No. 17 Old Aba Road Rumubiakani Port Harcourt Rivers State.
2. An order of Court on Finbank Nigeria Plc to transfer all monies so far collected on behalf of the family by Don. I. Offiah and Barr. Peter Offiah which they paid into a Finbank Nigeria Plc joint account No. 123430000285201 in their names into the now family account No. 1261060032247 with Diamond Bank Nigeria Plc in the name of Greg. I. Offiah?s children.
3. Perpetual injunction restraining Barr. Peter Offiah from collecting or

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continuing to collect rent from the tenants occupying any of the families? properties without authentication and consent of the family.?

On the 11th day of April 2011 before the issuance of the writ of summons, the plaintiffs had obtained an order from the High Court of Imo State in the following terms –
ORDER OF COURT
Upon reading through the exparte motion, the supporting affidavit, and the written argument in support of same and the reliefs sought therein and after hearing A. C. Meze, esq of Counsel for the Applicants.
THE COURT HEREBY ORDER AS FOLLOWS:
That the writ of summons and other Court processes are to issue out of Imo State for service on the 1st defendant at No 12 Akerele Street Surulere Lagos. Lagos State and the 2nd defendant at No. 93 Broad Street Lagos.
IT IS FURTHER ORDERED THAT THE WRIT OF SUMMONS are to be marked as one for service outside jurisdiction of this Court.
IT IS FURTHER ORDERED THAT the writ of summons and all other processes in this suit, be served on the 1st defendant by substituted means. That is to say by delivery of same to his office at No. 12 Akerele Street, Surulere Lagos,

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Lagos State by EMS speed post or DHL or any other recognized courier service. And on the 2nd defendant through their branch Manager or any other officer at their Wetheral road branch, Owerri, Imo State.
That such service, shall be deemed good, and proper service on the defendants/Respondents.
Return date is 11/5/2011.

The writ of summons that issued had endorsed on it ?For service out of jurisdiction.? The plaintiffs on 23-5-2011 also filed a motion on notice at the trial Court seeking an ?interlocutory injunction restraining the first defendant from collecting rent and/or continuing to act as manager of the properties of Late Chief Greg I. Offiah pending the determination of the substantive suit.?

On being served with these processes the Appellant, in a motion dated 6th May, 2011 but filed on 8th June, 2011 prayed the trial Court as follows:
?1. AN ORDER of Court setting aside the service of the Claimants/Applicants motion for interlocutory injunction dated 23rd May, 2011 filed in Court the same day, improperly served on the 1st Defendant on 2/6/2011 and fixed for hearing on 9th June 2011, on

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the ground that: –
The time between service of the said Motion on Notice on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30days.
2. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011, filed in Court the same day, improperly served on the 1st Defendant on 2nd June 2011 and fixed for hearing on 9th June 2011, on the ground that the time between the service of the said motion on the 1st Defendant who is outside the jurisdiction of the Court and the hearing of the motion is less than 30 days.
3. AN ORDER of Court setting aside or striking out the Claimants/Applicants motion for interlocutory injunction dated 23rd May 2011 filed in Court the same day, fixed for hearing on 9th June, 2011 on the ground that two of the building, the subject matter of this suit, are situate in Rivers State and the honourable Court lacks the jurisdiction to entertain this Court.?

On the same 8th June, 2011 the Appellant filed another motion dated 6th June, 2011 praying the trial Court as follows: –

?1. AN