Mohammed Mari Kida V A.D. Ogunmola (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

In the High Court of Justice of Borno State of Nigeria, in the Maiduguri Judicial Division and in suit No. M/391/94, the plaintiff claimed against the defendants as follows:

(a) An order for specific performance compelling the defendants jointly and severally to conclude the agreement for assignment in respect of property situate and lying at No. 4A Ahmadu Close, Damboa Road, GRA, Maiduguri between the plaintiff and the defendants by delivering of the title deeds and the physical possession of the said property to the plaintiff. Or in the alternative – An order for the repayment to the plaintiff the sum of N625,000.00 by the defendant being the sum collected by the defendants from the plaintiff as consideration for the assignment of the said property. N50,000.00 general damages for the breach of contract.

(b) The cost of the suit.”

The five defendants mentioned in the suit included the respondent herein Mr. A. D. Ogunmola who was the second defendant. It appears from the printed record, that the court bailiff was only able to serve personally the writ and the accompanying statement of claim on the 1st defendant and the 5th defendant, both though the 1st defendant, Pastor Mohammed Audu Mshelia. In an enrolled order issued by the learned trial Judge, leave was granted to the plaintiff to:-

“1. Issue and serve the 2nd defendant (respondent herein) with the writ of summons and other court processes out of jurisdiction.

2. An Order to serve the 2nd, 3rd and 4th respondents/defendants with the writ of summons and other court processes by means of substituted service by pasting same at 4A Ahmadu Bello Close, ORA, Maiduguri, being the last known place of abode of the 2nd, 3rd and 4th respondents/defendants.”

Apparently, when none of the defendants filed a defence to the statement of claim accompanying the writ of summons, and apparently when 2nd, 3rd and 4th defendants were served, the plaintiff filed a motion praying for judgment to be entered in default of statement of defence against all the defendants. In opposition to this application, the first defendant filed a counter-affidavit on the 26/11/1996. while on the 18/10/1995 the 2nd and 5th defendants, applied by a motion on notice and prayed for orders to extend time within which to enter conditional appearance and to deem the proposed memorandum of appearance under protest as duly filed. In his ruling delivered on the 26/3/1996, the learned trial Judge granted extension of time to enter the conditional appearance and deemed the appearance under protest as duly filed.

On the 12/6/1996, the plaintiff’s motion to enter judgment in default of defence against the defendant was moved by the learned counsel for the plaintiff: Only the 1st defendant was represented by counsel who opposed the application, the other defendants including the 2nd defendant, the respondent herein, were absent from court, though they were said to have been served. In his ruling on the aforesaid motion delivered on the 24/12/1996, the learned trial Judge granted the plaintiff’s prayer and entered judgment in default of defence against all the defendants, including the 2nd defendant. In the said judgment, the learned trial Judge ordered the defendants including the 2nd to jointly and severally refund the sum of N625,000.00 to the plaintiff, including costs. In order to execute the judgment, the plaintiff successfully obtained an ex-parte order granting him leave for the attachment and sale of the property situate at 4A Damboa Road, ORA, Maiduguri in the satisfaction of the judgment.

On the 3rd of July, 1997, the 2nd defendant filed an application before the trial Judge praying for the following orders:-

“(a) An order extending the time within which to apply to set aside the judgment of court entered in this suit of the 24/12/1996.

(b) An order setting aside the judgment of court entered in this suit on the 24/12/1996 in default of appearance and defence.

(c) An order setting aside the order of court made on the 17/2/1997 granting leave to the plaintiff to issue writ or execution against the immovable property or the judgment debtors.”

The 2nd defendant filed an affidavit of urgency and also the affidavit in support of the motion. The 2nd defendant deposed that he was the registered owner and the holder of the Right of Occupancy of the properties Nos. 4 and4AAhmadu Close, Damboa Road, GRA. Maiduguri covered by Certificate of Occupancy NE/3.198. He deposed further that he assigned and conveyed the properties to Faith Revival Ministries Church and left Maiduguri to settle down in Ibadan with his family since 1995. He denied knowledge or any transaction with the plaintiff and he never appointed the 1st defendant as his agent and denied receiving any sum of money from the 1st defendant. He also denied any service on him of the processes or this suit as he was in Ibadan having relocated there with his family since 1995. He further denied appointing or engaging any person to appear for him in this suit. The plaintiff filed a counter affidavit in which it was deposed that the 2nd defendant was served by substituted service pursuant to the order of court made on the 28/2/1995. It is further deposed that the 2nd defendant entered appearance and had engaged the service of counsel who entered conditional appearance on his behalf and appeared in court on his behalf, that the motion for judgment in default of pleadings was duly served on the 2nd defendant through his counsel. It was further deposed that the 2nd defendant was still the legal owner of the properties before the execution or the judgment in this matter.

In his ruling on the matter delivered on 25/7/1997, the learned trial Judge agreed with the plaintiff that the 2nd defendant was duly served with all the processes by substituted means i.e. by pasting the processes on the door of the last known place of abode of the 2nd defendant and that the 2nd defendant was represented by counsel who had appeared for him on a number of occasions. The learned trial Judge found no justifiable reason to grant the prayer of the 2nd defendant. The application was accordingly refused.