Ikwo Etim Ventures V. Esimfam (Chief) Patrick Agbor O. Edem & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Honourable Justice Adie Onyebueke of the High Court of Cross River State, sitting in Calabar, delivered on Thursday 16th May, 2013. Appellant’s application at the lower court to strike out the suit or set aside the Writ of Summons was struck out hence, this appeal.

The Respondents, herein as Claimants, at the lower court commenced Suit No. HC/434/2012 against Ikwo Etim and the Appellant herein claiming the following reliefs:

i) A Declaration that the Claimants are entitled to the Statutory Right of Occupancy over the land-in-dispute known to parties and shown in the pictures taken and further described as No. 92 Old Odukpani Road, which institute on or is the same as No. 33 Murtala Mohammed Highway, near Cross Lines Motor Park and also opposite Conoil Petrol Station, Calabar.

ii) An Order cancelling Defendant’s title, registration, leases, agreements and all other transactions entered into by the Defendant over the land in dispute without the consent and authority of the Claimants.

iii) An Order of perpetual injunction restraining, the Defendant, his agents or servants from further interfering or entering upon or dealing with the lands above in any manner whatsoever without the consent and authority of the Claimants.

iv) N50 million damages for trespass.

The 1st Defendant, Ikwo Etim, and the present Appellant contested the matter by the Motion on Notice challenging the jurisdiction of the lower court to entertain the suit.

The Motion was filed on 22nd of January, 2012. The Respondents filed their counter-affidavit to the motion on 1st of February, 2013. Adoption of addresses was on 23rd of April, 2013. On 16th of May, 2013, the trial court in its ruling struck out the name of the 1st Defendant, Ikwo Etim, from the suit and further held that “…service on the 2nd Defendant was proper service”. Dissatisfied with that ruling, the 2nd Defendant filed a Notice of Appeal with one ground on 22nd of May, 2013.

Appellant’s Counsel distilled one issue for determination thus:

Whether the serviced of the originating processes in this suit on a sales boy of a cement shop not owned by the Appellant amounts to proper service of the originating process on the Appellant?

On this issue, Counsel for the Appellant argued that the service of court processes on a sales boy of a cement shop was not proper service in accordance with the provisions of Order 12 Rule 9 of the Cross River State (Civil Procedure) Rules 2008.

He also contended that the cement shop was not owned by the Appellant though it shared the same premises with the Appellant’s advertised place of business.

There was also no responsible person at the premises known as no. 92, Old Odukpani road, Calabar and used as a business contact point by the Appellant. Counsel stated that a responsible person, as contemplated by the Cross River State (Civil Procedure) Rules, 2008 is one who can take decisions on behalf of the Appellant.