Total E & P Nigeria Limited V. MR. Nwankwo Emmanuel & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On 23rd July, 2012 the Rivers State High Court sitting at Ahoada delivered judgment in the suit No. AHC/60/2012 against two sets of respondents in the said suit. The 2nd set of respondents in that suit comprised

1. THE COMMANDANT, YANKEE 9 MILITARY BASE
2. THE G.O.C., NIGERIA ARMY, BORI CAMP BRIGADE
3. TOTAL EXPLORATION & PRODUCTION CO (NIG) LTD

It appears none of the 3 parties in the 2nd set of respondents at the court below put up appearance at the court below before judgment in the suit for the enforcement of the applicants/1st set of Respondents fundamental rights was entered for the Applicants against the two sets of Respondents at the court below. The Appellant became aware of the judgment against the 2nd set of respondents at the court below.

He, not wanting to be confused for the 3rd party in the 2nd set of respondents at the court below named as TOTAL EXPLORATION & PRODUCTION CO. (NIG) LTD, applied to have the judgment set aside. This step they took to pre-empt and forestall the execution of the judgment against them. They gave their name as TOTAL E & P NIG LTD and not Total Exploration & Production Co. (Nig) Ltd that was sued.

The ground for the motion to set aside the judgment is that the Appellant, as the applicant, and the two other parties in the 2nd set of respondents at the court below were neither aware of nor were they served the processes, including the originating processes, culminating in the judgment delivered on 23rd July, 2012.

The applicants/judgment creditors at the court below insisted that the Appellant and the two (2) parties in the 2nd set of the respondents at the court were served all the processes. One Loveday Ogbu, said to be the Principal Registrar Customary Court, Ahoada had deposed to affidavit of service on 22nd May, 2012 to the effect that on 21st May, 2012 he served all the processes on the 1st and 2nd sets of respondents at the court below.

By that affidavit while all the 3 parties in the 1st set of respondents were served personally; the processes for service on the 3 parties on the 2nd set of respondents at the court below were served on one Maureen Maduka who is said to be Legal Secretary Total E & P Nig Ltd in their Port Harcourt District office.

Appellant says that all the processes meant for service on the 3 parties in the 2nd set of respondents at the court below were served on the Appellant, instead of Total Exploration & production Co. (Nig) Ltd listed as the 3rd of the 3 parties in the said 2nd set of respondents at the court below. Appellant denies any link or relationship with the said Total Exploration & Production Co. (Nig) Ltd.

The application to set aside the judgment as it affects the 3 parties in the 2nd set of respondents at the court below was refused and dismissed by the said court. The summary of that ruling/decision, the subject of this appeal, is:

a. The appellant was duly served all the processes of the court below culminating in its judgment.

b. Total Exploration & Production Company Nigeria Limited is the same with Total E & P Nigeria Limited and that the Appellant has not denied that Maureen Maduka is their staff.

c. Since the Appellant was properly served with the processes before judgment and it opted not to defend the suit the judgment could not be set aside by the same lower court that gave the judgment; and

d. Total Exploration & Production Company Nigeria Limited, the 3rd party in the 2nd set of respondents is the only party complaining about non service of the processes.

The Appellant filed nine (9) grounds of appeal contained in the notice of appeal filed on 30th January, 2013. The Appellant is not insisting on the notice of appeal filed on 19th February, 2013, and it was struck out at their instance on 19th February, 2014.