Chief Marcus Okoi V. Bmil International INC. & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the Calabar Division of the High Court of Cross River State presided over by His Lordship Honourable Justice Obojor Oga, delivered on the 6th day of December, 2012.

The Brief facts of this case according to the Appellant are that by a Writ of Summons filed contemporaneously with the Statement of Claim, the Appellant instituted Suit No.HC/156/2008 on the 12th day of May, 2008 at the Calabar Judicial Division of the Cross River High Court claiming the following reliefs jointly and severally against the Respondents namely:

a) Special damages of N105,444,225,000.00 being the present value of his investment outlay and N3,564,000,000.00 being less of profit pleaded in the Appellants Amended Statement of Claim of 5th May, 2010.

b) General damages of N1,500,000.00 bringing the total damages to N5,169,444,225.00.

The processes were duly served on the Respondents. The 1st Respondent was served by substituted means i.e. by UPS courier services on the 18th August, 2008. The 2nd Respondent was duly served

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accordingly. The 1st Respondent never showed up appearance all through the hearing of the suit at the trial while the 2nd Respondent entered a conditional appearance through Counsel on the 23rd day of September, 2008. The Appellant at the trial on the 27th day of March, 2009, applied for a pre-trial conference and served same Application on the Respondents who failed and or neglected to attend Court. Whereupon Judgment was entered for the Appellant as per his claim by Eyo E. Ita J. on the 8th day of May, 2009.

It was when an order for Garnishee Nisi was made against the 2nd Respondent’s account with the Central Bank of Nigeria that they woke up from their slumber and filed an Application to set aside the Judgment of 8th May, 2009.

The Lower Court in his wisdom granted the Application on the 22nd May, 2009 and as a result the 2nd Defendant filed an Amended Statement of defence on the 17th February, 2010 denying liability to the Appellant. Further, a consequential Amended Statement of Claim pursuant to the Order of the Court was made on the 19th April, 2010, and filed on the 6th May, 2011 and all documents tendered and marked as

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Exhibits.

At the trial, the Appellant testified in person while the 2nd Respondent called a lone witness – Felix Asuquo Effiom. At the end of trial, Judgment was delivered on the 6th day of December, 2012. It is against this Judgment that the Appellant is appealing.

To argue the appeal, the Appellant distilled (three) 3 issues for determination: