Chief Hyacinth Mmaduagwu & Anor V. Dara Martins Ifeanyi & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Anambra State, sitting at Nnewi (hereinafter referred as the Lower Court), delivered by Justice M. I. Onochie, J., on the 7th day of March, 2012.

The substantive suit was instituted by the plaintiffs/respondents vide a writ of summons dated and filed on the 11th day of October, 2010 wherein the plaintiffs/respondents sought ten (10) reliefs against the defendants/appellants. The reliefs include:

?A declaration that the purported selection of the 2nd Defendant by the 1st Defendant as the Igwe-Elect of Ukpor in Nnewi South Local Government Area of Anambra State is ultra vires, irregular and a violation of the customs, tradition and historical norms of Ukpor and is therefore null and void.?

Consequently, the 3rd and 4th defendants/appellants were duly served with the said writ of summons. However, the plaintiffs/respondents complained that they could not effect service of the said writ on the 1st and 2nd defendants/appellants as they alleged that the said defendants/appellants were

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evading service. Consequently, the plaintiffs/respondents filed a motion ex-parte on the 8th day of November, 2010 seeking for:

?AN ORDER FOR SUBSTITUTED SERVICE of the originating processes in this suit and subsequent processes in this suit on the 1st and the 2nd defendants afore-named (Chief H. Mmaduagwu & F. C. Onyimadu).?

The motion was granted by the Lower Court in the following terms:

?1. Leave is granted to the Applicant to serve the 1st and 2nd Defendants in this case by substituted means that is to say by posting all the processes meant for service on them at the entrance door of their respective country homes at Ukpor in Nnewi South Local Government Area.

2. Upon service being effected in the manner aforesaid, it shall be deemed as good service on the 1st and 2nd Defendants.?

Armed with the order of the Lower Court made above, the plaintiffs/respondents in company of the Lower Court?s bailiff, effected service on the said 1st and 2nd defendants/appellants in accordance with the order of the Lower Court. Subsequent thereto, the said 1st and 2nd defendants/appellants filed a motion on notice on

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the 21st day of February, 2011 whereby they sought for the following orders:

?1. An order nullifying or setting aside the writ of summons issued in this suit for its fundamental defect or its non-compliance with the rules in beginning the proceedings and consequently striking out the suit for being incompetent and for lack of jurisdiction to adjudicate on it.