Reuben Okolo & Anor V. Chief Augustine Okoye (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

On the 12th of November 2008, the respondent herein, as plaintiff commenced suit No. A/285?08 in the High Court of Anambra State against the appellants herein as defendants by filing a writ of summons accompanied by a statement of claim, list of witnesses, witnesses statements on oath, list of documents to be relied on and copies of the said documents.

By a motion on notice dated 18-5-2009 and filed on 19-5-2009, the appellants applied for –

(a) An Order setting aside the service of originating court processes upon a person other than the 1st and 2nd defendants/applicants on record by the process server who purportedly effected the service without any pointer as required by law on the l3th day of March 2009 at Etiti village, Enugwu-Agidi.

(b) An Order setting aside/varying a previous order of this Honourable Court made on the 4th day of May, 2009 for “A PRE-TRIAL CONFERENCE” to be conducted in this suit on the 01/06/09, for WANT OF PERSONAL SERVICE of originating Court processes on the 1st and 2nd defendants/applicants as required by law.”

The motion is accompanied by three supporting affidavits and the appellant’s written address. The respondent on 22-5-2009 deposed to and filed a counter-affidavit thereto accompanied by his written address. The 1st appellant on 25-5-2009 deposed to an affidavit in reply to the respondent’s counter-affidavit. By a motion on notice dated 26-5-2009 and filed on 28-5-2009 the appellants applied for-

(a) An order extending the time within which the defendant/applicants are to file and serve a conditional memorandum of appearance, their statement of defence, list of witness, written deposition on oath, list of document, and other processes.

(b) An order deeming the conditional memorandum of appearance, statement of defence, list of witness, written deposition on oath, list of document and other processes as properly filed and served, appropriate fees having been paid.

(c) And for such further or other Orders as this Honourable Court may deem fit to make in such circumstances

The said motion on notice was accompanied by the memorandum of appearance, statement of defence, list of exhibits to be relied upon by the appellants, list of appellant’s witnesses, a witness deposition on oath and appellants’ counsel’s written address.

The appellants on the 28-5-2009 also filed a pre-trial information sheet dated 26-5-2009.

On the 4-5-2008, Learned Counsel for the appellants appeared for them in this case at the trial court protesting that they had not been served personally. Learned Counsel for the respondent replied that appellants were served by the bailiff of that court on 13-3-2008 and that the affidavit of service was in court and applied for a date for pre-trial conference. The matter was adjourned by the trial court to 1-6-2009 for pre-trial conference. However the record of this appeal show that proceedings in the suit continued at the trial court on 25-5-2009 in the presence of all parties and their respective Counsel. The appellants moved the motion on notice for, inter alia an order to set aside the service of the originating processes upon a person other than the 1st and 2nd respondents. After hearing the arguments of Learned Counsel to both sides, the trial court held that the motion failed and dismissed same adjourning the suit to 1-6-2009 for pre-trial conference.

Dissatisfied with this decision, the appellants on 7-6-2009 commenced this appeal No. CA/E/381/2009 by filing a notice of appeal containing two grounds of appeal. The briefs in this appeal include the appellant’s brief of argument, the respondent’s brief of argument and the appellant’s reply brief. The parties herein adopted their respective briefs of argument.

The appellants in their briefs of argument raised the following issues for determination