Federal Capital Development Authority & Anor. V. Dr. Timiebi Augusta Koripamo-agary (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment)

The Appellants herein were the Defendants at the trial Court where the Respondent as Plaintiff instituted the suit subject of this appeal through a Writ of summons and Statement of Claim filed on 14th February, 2007 in the High Court of the Federal Capital Territory of Nigeria sitting at Abuja, Coram: The Honourable Justice M.N. Oniyangi seeking the six (6) reliefs endorsed in paragraph 31(i) – (vi) of the Statement of Claim as follows:-

STATEMENT OF RELEVANT FACTS:

1. The Respondent (as Plaintiff) commenced Suit No. FCT/HC/CV/461/2007 by Writ of summons and statement of Claim filed on 14th February, 2007 against the present Appellants (as Defendants) in the High Court of the Federal Capital Territory of Nigeria sitting at Abuja (Coram: The Honourable Justice, M.N. Oniyangi) seeking the 6 reliefs endorsed in Paragraph 31 (i)-(vi) of her Statement of Claim in terms outlined therein.
2. Simultaneously, with the filing of the Writ of Summons and Statement of Claim on 14th February, 2007, the Respondent (as Plaintiff) in the Lower Court also applied for interim injunctive orders in the following regard by filing a Motion Ex-Parte. The Plaintiff had also separately filed a Motion on Notice seeking the following orders:

“(1) AN ORDER OF INTERIM INJUNCTION restraining the Defendants jointly and severally by themselves, officers, agents, servants, privies or howsoever called from taking any steps or doing any act or otherwise dealing in/or with the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja in any manner that will adversely affect the interest of the plaintiff as occupant thereof pending the hearing and determination of the Motion on Notice for the interlocutory injunction.

(2) AN ORDER OF INTERIM INJUNCTION restraining the Defendants jointly and severally by themselves, officers, agents, servants, privies or howsoever called from taking any steps or doing any act or otherwise dealing in/or with the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja as to rest in or transfer to Nestllo Global Limited or any other person, any equitable, proprietary or other rights whatsoever in the said property pending the hearing and determination of the Motion on Notice for the interlocutory injunction. (3) AN ORDER OF INTERIM INJUNCTION restraining the Defendants jointly and severally by themselves, officers, agents, servants, privies or howsoever called from evicting the Plaintiff from or otherwise interfering with the Plaintiff’s peaceable possession and quiet enjoyment of the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja pending the hearing and determination of the Motion on Notice for the interlocutory injunction.”

3. On the 19th February, 2007, The Honourable Justice M. N. Oniyangi sitting at the High Court of the federal Capital Territory of Nigeria at Abuja heard the Motion Ex-Parte for Interim Injunctive Orders and held in the following terms:-

“ORDER IS HEREBY GRANTED restraining the Defendants in the interim jointly and severally by themselves, officers, agents, servants, privies or howsoever called from evicting the Plaintiff from or otherwise interfering with the Plaintiff (‘s) peaceable possession and quiet enjoyment of the property situate at No. 58, (formerly Plot 1112), Kwame Nkrumah Crescent, Asokoro, Abuja pending the hearing and determination of the Motion on Notice for the interlocutory injunction.

The Motion on Notice is fixed for 27th of February, 2007 for hearing.”

4. On the 20th February, 2007, Tijani A. Danjuma a Bailiff of the Lower court caused to be issued and served upon the present Appellants (as Defendants) the following processes:-

(i) Separate Notice of Consequences of Disobedience to Order of Court (Form 48) to Engr. Mohammed Al-Hassan, Executive Secretary to the 1st Appellant; and to Mallam Nasir El-Rufai, OFR, the then Minister of the Federal Capital Territory.

(ii) Separate Certified Copies of Court Order of the Lower Court of 19th February, 2007 indorsed and endorsed to the Separate forms 48 referred to above.

(iii) Writ of Summons and Statement of Claim filed on 14th February, 2007.

(iv) Motion on Notice together with supporting affidavit seeking interlocutory injunctive orders filed on 14th February, 2007.

5. Proof of Service in form of Certificate issued in terms of form 3 pursuant to the provisions of Order 5 Rule 16(1) and (3) High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 on both Appellants was executed by one Tijani A. Danjuma, a Bailiff of the Lower Court on 20th February, 2007.
6. By letter of 27th February, 2007 both Appellants acting through agents served upon the respondent an unsigned Notice to Quit the property situate at No. 58, (formerly Plot 1112) Kwame Nkrumah Crescent, Asokoro, Abuja within 48 hours thereof or suffer the risk of forceful ejection contrary to, in willful, wanton disobedience to the order of the Lower court of 19th February, 2007. The letter of 27th February, 2007 concluded by stating that:

“Please note that failure to comply with this directive will result in forceful ejection.”

7. Finally, between the hours of 10.30am and 11.30am and 4:00 pm and 5.00pm on Thursday 1st March, 2007, the present Appellants made good on their threat to evict the Defendant from the property in wanton, reckless and arbitrary disregard and defiance of the Order of the Lower Court of 19th February, 2007.
8. Consequently, the present respondent through counsel Caused Notice to Show Cause Why Order of Committal Should Not Be Made (form 49) to be filed and served upon the Defendants, namely Engr. Mohammed Al-Hassan and Mallam Nasir El-Rufai, OFR. The Honourable Justice, M. N. Oniyangi, sitting at the High Court of the Federal Capital Territory at Abuja heard the Form 49 on 29th March, 2007.
9. The Appellants (as Defendants/Respondents) contended that although they were Public Officers, yet since they were not ‘personally’ served with processes which rendered the whole committal proceedings against them incompetent. The Respondent (as Plaintiff) through Counsel relied on the provisions of Order 11 Rule 6 High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 to the effect that owing to the circumstances before the Court, both Forms 49 were properly served and that ‘personal service’ was not synonymous with or meant “service in person’.
10. Learned trial Judge thereafter held inter alia:

“I have patiently listened to the response of Engr. Mohammed Al-Hassan and Mallam Nasir El-Rufai, OFR, The Honourable Minister of the Federal Capital Territory to the question posed by the Court as to why they were not here after being served with the process of this Court inviting them to come forward to explain the part or role which they played in the alleged complaint of the Plaintiff regarding the alleged violation of the interim order of this Court.

I have equally considered the submission of the learned Counsel to the Plaintiff and that of the learned Senior Counsel representing the Defendants/Respondents. Equally, I have considered the provision of Order 11 Rule 6 of this Court’s Rules on service of process and the like. In the instant case and having regard to the provision of the rules and their respective position(s) in the civil service of this great nation they were legally served with the processes. The various endorsements by their staff of their ministry or department is an eloquent testimony to this effect. See also the affidavit of service by the Bailiff in that regard. I therefore hold that they were properly served in law.”