Daewoo (Nig) Ltd V. Alamina & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. 

The instant appeal is a natural fall-out of the decision of the Court of Appeal, Port-Harcourt, Judicial Division, coram Ejembi Eko, JCA (as he then was), Modupe Fasanmi and Stephen J. Ada, JJCA, delivered on January 27th, 2014 in appeal No. CA/PH/295/2013. By the decision in question, the Court below dismissed the Appellant’s appeal challenging the decision of the Rivers State High Court in suit No. NHC/91/2000 delivered on March 8th, 2013.

BACKGROUND FACTS

The facts and circumstances surrounding the appeal are not at all far-fetched. They are deducible from the record of appeal, evidently transmitted from the Court below to this Court on October 6th, 2021.

Indeed, the genesis of the appeal is traceable to September 23rd, 1991. That was the fateful day one Siyeofori A lamina was killed while fishing in Ogu Creek, in Ogu lobolo Local Government Area of Rivers State, in an accident allegedly caused by the Appellant’s speed boat, SLUDGE 1.

​Series of efforts were made by the respective parties with a view to amicably diffusing tension arising from the circumstances leading to the untimely death of the deceased person. Most particularly, on September 23rd, 1999, one Mr. HT Minakiri wrote letters to the Appellant and various other organizations (including the Ijaw Freedom Fighters, Ijaw National Congress, et al), thereby demanding for the payment of damages in the sum of N147,000,000.00 (One Hundred and Forty Seven Million Naira) only to the family of the victim of the accident, the late Mr. Siyeofori Alamina.

On December 20th, 1999, the Appellant, by its letter addressed to the Ijaw National Congress, forwarded to the family of the deceased person (Mr. S. Alamina) an Equity Bank Ltd cheque bearing the sum of one Million Naira. The cheque in question was received and duly acknowledged by one High Chief F.J. Williams on December 21st, 1999.

However, on September 28th, 2000, 9 years after the fateful accident that resulted in the death of the said Mr. S. A lamina, Mr. H T Minakiri (now deceased) deemed it expedient the institute the suit (NHC/91/2000) at the trial High Court vide a writ of summons. Filed along with the writ was a motion Ex parte, thereby praying the trial Court to hear and determine the action under the undefended List procedure. The trial Court granted the motion Ex parte, and accordingly entered the action under the undefended List.

On October 17th, 2000, barely two weeks after entering the suit under the undefended List, the trial Court proceeded to deliver judgment and grant all the reliefs sought by the Respondents (claimants).

Consequent upon the demise of the original claimant (Mr. Minakiri), the 1st Respondent herein filed an application to substitute same, which said application was duly granted by the trial Court on February 29th, 2012.

On March 1st, 2012, the Appellant filed an application (dated 29/02/2012) seeking the trial High Court for the following reliefs:

1. AN ORDER for extension of time within which to apply to set aside and/or vacate the judgment/decision delivered in this matter on the 17th day of October, 2000 for want of jurisdiction and non-service of the originating processes in the matter on the Defendant/Applicant.
2. An ORDER setting aside and/or vacating the judgment/decision delivered in this matter on the 17th day of October, 2000 for want of jurisdiction and non-service of the originating processes in the matter on the Defendant/Applicant.
3. AN ORDER setting aside the aforesaid judgment/decision in this suit delivered on the 17th, day of October, 2000 on the ground that the same was obtained by fraud and/or misrepresentation.
4. AN ORDER striking out the claimant’s writ of summons and other processes in this matter for lack of jurisdiction of the Honourable Court to hear and entertain this matter.
5. AN ORDER for stay of execution of the judgment/decision delivered in this action on the 17th day of October, 2000 by the Honourable Court pending the hearing and determination of this application.
6. AN INJUNCTIVE ORDER restraining the Claimants/Respondents, whether by themselves, their servants, agents and privies from howsoever employing any known means or method of executing or recovering the sums awarded to him in the judgment delivered on 17/10/2000 which is being challenged herein, including the commencement of garnishee proceedings before any superior Court of record in Nigeria in pursuance of the aforesaid judgment of 17/10/2000 pending the hearing and determination of this application.
7. AND for such further or other orders as this Honourable Court may deem it fit to make in the circumstance.

ALSO TAKE NOTICE that the Defendant/Applicant may seek the following alternative prayers:-

1. AN ALTERNATIVE ORDER that the writ of summons and other originating processes be served on the Defendant/Applicant so that she can enter appearance in the matter and deliver her notice of intention to defend the suit together with an affidavit disclosing defence on the merit
2. AN ALTERNATIVE ORDER removing the matter forth with from the undefended list and transferring it to the general cause list for it to be heard on the basis of pleadings and viva voce evidence of the parties and their witnesses.
3. A FURTHER ALTERNATIVE ORDER striking out the name of the 2nd claimant in this suit as it is a non-juristic legal persona that can neither sue nor be sued eo nomine.

That application was predicated upon a total of ten grounds and 23 affidavits sworn to by one Jude Umahi, the Assistant Administration manager of the Appellant.

​The Appellant’s application seeking to set aside the default judgment in-question was argued by the respective parties and ruling delivered by the trial Court on March 18th, 2013, thereby resulting in dismissing the Appellant’s application.