Dr. Chris Okoye V. Chief Gabriel Sunday Ofoma J. P. Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice R. N. Pemu (Mrs.) (as he then was) sitting at High Court of Delta State, at Effurun judicial Division delivered on the 29th day of November 2005, in which the Appellant was the Co-Respondent. The Notice of Appeal filed by the Appellant to initiate this action is dated the 19th of January 2006 and contains Six (6) grounds of Appeal.

The background facts to this action is as follows:

The Petitioner filed his Petition for the Decree of Dissolution of Marriage between the Petitioner and Respondent on 18th February, 2005. The Petitioner joined the Appellant as the Co-Respondent to the said petition. On 22nd February, 2005 the Honourable Trial Court made an order for substituted service on the Co-Respondent of the Notice of Petition and other processes in the suit by Courier in Anambra State. Pursuant to the said order of Court on 28th February, 2005 the Co-Respondent/Appellant was given an envelope (containing documents) that was served by Red Star Express Courier on one of his Staff at Trinity Hospital, Unubi, Nnewi South Local Government Area, Anambra State.

On opening the said envelope the Co-Respondent/Appellant saw the Notice of Petition, the Certificate Relating to Reconciliation, the Petition for Dissolution of Marriage, a Photostat copy of the Marriage Certificate and a Photostat copy of the Order for substituted service made by the Honourable Court on 22/2/2005. The Co-Respondent promptly filed his Answer on 23rd March, 2005 and he was informed by his Counsel that an application to set the Suit down for trial as a Defended Suit and the Registrar’s Certificate setting the Suit down for trial would be served on him later and that he should then travel to the Court stated in the said Certificate on the date of hearing stated therein. After filling his Answer no other process was served on the Co-Respondent/Appellant.

On 8th April, 2005 Co-Respondent’s Counsel received through the Red Star Express Courier a copy of the Counter Affidavit sworn to on 5/4/2005 by the Petitioner. No Motion on Notice or nnnHearing Notice was attached to the said Counter Affidavit and the Co-Respondent was not served with even the Answer of the Respondent. The Co-Respondent saw his Counsel several times on the issue but the latter advised him that the Court made an order for substituted service on him by Courier and once the matter is set down for hearing he would be served the process or an Hearing Notice. Learned Counsel informed the Co-respondent that if he received any process from the Court in respect of the Suit he would immediately inform him. On 1st December, 2005 Counsel for the Co-Respondent was in Onitsha High Court to appeal in a Suit and coincidentally he saw the Learned Counsel for the Respondent who told him that somebody telephoned him on 30/11/2005 and told him that judgment had been delivered in the suit and that the Co-Respondent was ordered to pay one million naira damages for adultery to the Petitioner. Counsel for the Co-Respondent asked the Learned Respondent’s Counsel when hearing started in the Suit as they were not served with any process setting the Suit down for trial or with any Hearing Notice.

Respondent’s Counsel stated that he filed an appeal against the Ruling of the Honourable Court on a Motion he filed and Counsel for the Co-Respondent stated that they were not served with any Motion or Appeal document apart from the Counter Affidavit of the Petitioner.

As Counsel for the Respondent stated that he had not obtained the said judgment of the Honourable Court, on 15/12/2005 Co-Respondent’s Counsel sent a legal practitioner to Effurun Court to obtain:

(3) Certified True Copies of all the documents contained in the Court’s file in respect of this Suit;

(ii) Certified True Copy of the Judgment of the Honourable Court; and

(iii) Certified True Copy of the record of proceedings in respect of this Suit.

The said Counsel succeeded only in bringing the certified true copies of all the documents contained in the Court’s file in respect of this Suit. From the certified true copies of all the said documents in the file of the Honourable Court it was noticed that there was no application to set the Suit down for trial as a Defended Suit and there was no Registrar’s certificate setting the Suit down for trial. As the Honourable Court made an order for substituted service by Courier on the Co-Respondent the only Courier receipt of service on the Co-Respondent was the Red star Express Courier receipt showing that the Co-Respondent was served on 25th February, 2005 which was the date of service on his staff of the Notice of Petition, the Petition and the other processes stated in paragraph 5 (supra). It was also seen in the Judgment that a whopping damage of one million naira was awarded against the Co-Respondent for adultery and for his refusal to come to Court to refute the allegation against him when he was not served a hearing Notice or Registrar’s certificate setting the suit down for hearing as a defended Suit.

The Co-Respondent on 12th January 2006 filed a Motion dated same 12/1/2006 to set aside the judgment of the Honourable Court on the ground that no Registrar’s Certificate setting the Suit down for trial was applied for or issued and that no Hearing Notice was served on him before the Suit was heard and determined and Judgment entered against him. The Honourable Court fixed the Motion for hearing on 7th March, 2006. As the Co-Respondent was afraid that his time for appeal would run out before the hearing of the said Motion he filed his Notice of Appeal on 2nd February, 2006. On said 7/3/2006 when he went for the hearing of the said Motion he was informed that the Records of Appeal and the case file had been transferred to the Court of Appeal, Benin. Co-Respondent was surprised and he paid for and was given the copy of the said Record of Appeal.

From the said Notice of Appeal, the Appellant distilled the following Six (6) issues for determination: