Estate Of Late Chief Humphrey I. S. Idisi V. Ecodril Nigeria Limited & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

CHIMACENTUSNWEZE,J.S.C.

By an Originating Summons, the third and fourth respondents in this appeal (as plaintiffs) commenced an action against the appellant (as first defendant) at the High Court of Delta State, Isiokolo Judicial Division. They claimed the sum of N250, 000, 000.00 (Two Hundred and Fifty Million Naira) “being monies (sic) due to the appellant” from the first and second respondents. For its bearing on the questions canvassed by the parties, I shall set out the ipsissima verba of the main relief as expressed on the said Summons:

An order for the sum of N250, 000, 000. 00 (Two Hundred and Fifty Million) against the first defendant which monies are not being contested by the first defendant but in possession of the second and third defendants; as monies (sic) due and shall fall due to the first defendant from the second and third defendants as facilitator and chairman of the second and third defendants’ companies; being monies/amount/sum owed the plaintiffs by the first defendant for items supplied by the second plaintiff to the first defendant and was fully paid for

and satisfied (sic) by the first plaintiff to the second plaintiff on behalf of the first defendant – the facilitator and chairman of the second and third defendants between the period of 1998 to 1999, on running supply contracts within the jurisdiction of this Court; which the first defendant has refused and/or failed to make good till date to the first plaintiff

[Page 11 of the record, Italics supplied for emphasis]

From the tenor of the italicised subordinate clause in the above relief, it is not in doubt that the claim wasanchored on an alleged contract entered into between the appellant and the third and fourth respondents: acontract from which the sum due, namely, N250, 000, 000.00 (Two Hundred and Fifty Million Naira), eventuated. Put differently, the third and fourth respondents [as plaintiffs] sued on the contract which they entered into with the appellant. In effect, the first and second respondents, not being privy to the said contract, were total strangers to it.

That notwithstanding, the originating processes were not served on them [that is, the first and secondRespondents]. Rather, the bailiff dropped

copies of an alien process in the appellant’s office at Sapele.

Curiously, he [for himself and on behalf of the first and second respondents] engaged the services of one A. K. Osawota who, at the hearing of the matter at the High Court on February 3, 2000, purportedly represented not only the appellant but also the first and second respondents. In what evidently smacked of unprofessional conduct, he did not oppose the application of the plaintiffs’ counsel for judgment. The trial Court, accordingly entered judgment against the appellant and the first and second respondents.

Upon becoming aware of the judgment, the first respondent beseeched the trial Court with an application

for stay of execution of the judgment and for an order to set it aside. The Trinitarian Grounds of the application, which should have called for considerable circumspection on the part of the trial Court, were as irreproachable as they were formidable:

(i) The second respondent is not a juristic person capable of suing or being sued in a Court of law;

(ii) The Originating Summons in this action was not served on the first respondent as

prescribed by law;