Michael Okoye V. Christian Chukwuemeka Anika (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment)

The High Court of Anambra State at its sitting in Onitsha on the 18th August, 2010, in the Judgment delivered same date granted all the reliefs sought by the Respondent herein as the Plaintiff in the suit instituted at that Court vide the Writ of Summons in Suit NO. A/319/2003 against the defendant, the Appellant herein, in default of pleadings and appearance.

Not happy with the outcome of proceedings leading to that Judgment at that High Court the appellant (Defendant) approached and filed an application, a Motion on Notice at Awka Judicial division of Anambra State High Court on 17/08/2011 where he sought multiple reliefs namely;

“a) An Order extending the time within which the defendant may apply to the Court for an Order setting aside the Order for substituted service made in this suit.

b) An Order extending the time within which the defendant may apply to the Court for an Order setting aside the proceedings and Judgment delivered in this Suit.

c) An Order setting aside the Order for substituted service made by this court.

d) An Order setting aside the Judgment of Honourable Justice P.N.C. Umeadi then of the High court of Anambra State holden at Onitsha delivered in the above suit on 18th day of August, 2010 in default of appearance of the defendant and without proper service of the Writ of Summons and other processes on the defendant.”

That application at the Court below was accompanied with an affidavit of 26 paragraphs in support which the Appellant himself had deposed to. Further to that were 2 (two) other or further affidavits deposed to by Nonye Okoye and Ikegbuna Nwoyanta on 12/08/2011 on behalf of the appellant in support of that same application as can be seen at pages 69-79 of the record of Appeal. His Counsel in addition, filed a written address on the 17/8/2011 in support of the Motion on Notice.

The appeal to this Court is sequel to the proceedings of the Court below before Hon. Justice C.A.C. Emembolu held or conducted on 8th February, 2012 at the High Court of Justice, of Anambra State, Awka Judicial Division, Awka. The proceedings and the Ruling of that Court in particular are at page 105 of the Record of Appeal. That is the subject of appeal to this Court. The appellant had filed his Notice of Appeal on the 23/2/2012. It is dated 20th February, 2012. I refer to pages 110-112 of the Record of Appeal. The Notice of appeal has only 1 (one) Ground of Appeal.

Briefs of argument were settled by Learned Counsel for the Appellant and Respondent respectively. The Brief of Argument for the Appellant dated the 20th February, 2014 was filed on the 4th March, 2014 while the Amended Brief of Argument for the Respondent dated the 25th April, 2014 was filed the 28th April 2014. In it he raised a point or points of Preliminary Objection.

The appellant filed a Reply Brief and Reply to Preliminary Objection on the 4th March, 2014. The process itself is dated 20th February, 2014. It is worthy of note that all the processes referred to above all have the name of “George Okwudili Anyika” reflected on them, who had been substituted for Christian Chukwuemeka Anyika as “Respondent on the Order made in this Court on 11/02/2014.

By his Amended Brief of Argument at paragraphs 4.0 the Respondent has raised a point of Preliminary Objection and proceeded thereat at paragraph 4.01-4.10 to advance arguments in support at pages 3-6 of his brief in line with his Notice of Preliminary Objection dated the 28th April, 2014.

The appeal came up in this Court for hearing on 23/9/14. The Respondent was represented by Counsel, Amaka Egeano who invited the Court to the Notice and the objection raised by them in their brief and the arguments canvassed thereto in urging this Court to uphold the Preliminary Objection and strike out the appeal.

Chief G.O. Osuigwe is Counsel for the appellant. In the Reply brief filed by them on 4-3-2014 at paragraph 1.01 to 1.06, he debunked the issues raised in the Preliminary Objection.