Uba Okeke V. Tijani Lawal & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant in this appeal, [as the plaintiff at the High Court], took out a Writ of Summons at the High Court of the Warri Judicial Division against the respondents herein [as defendants], jointly and severally, claiming the sum of Four Million Naira (N4,000,000), being special and general damages for assault and battery. It was alleged that the defendants committed the said tortious acts against the appellant on April 26, 1988. This allegedly occasioned the permanent loss of his eye. It also resulted in persistently severe and continuing excruciating pains and suffering.

Notwithstanding several attempts, the defendants were not served with the processes. All the same, the High Court, (hereinafter, simply, called “the trial Court), proceeded to the hearing of the case. The plaintiff presented his case whereupon the matter was adjourned about seven times. Learned counsel for the plaintiff addressed the Court on October 22, 1992. The matter was then adjourned to November 16, 1992 for judgment.

Curiously, although neither the defendants nor their counsel was in

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Court in any of those days, no hearing notice was ordered to be issued and served on them. Sequel to the judgment of the trial Court in favour of the plaintiff, the defendants approached the Court of Appeal, Benin Division (hereinafter, simply, referred to as the Lower Court’), which by its judgment of March 29, 2006, allowed the defendant’s appeal against the judgment of the trial Court and set it aside. This further appeal to this Court is the expression of the appellant’s grievance against the judgment of the Lower Court. He formulated two issues couched thus:

1. Whether it is not a miscarriage of justice, for the Court of Appeal to have suo motu, raised the issue of non-service to the respondents and non-compliance with the provision of Section 97 of the Sheriff and Civil Processes Act by the appellant and make pronouncement on the issues raised without hearing both the appellant and respondents on the issues so raised
2. Whether indeed there is nothing on record to satisfy the Court that the first to fifth respondents were served with any process of Court as wrongly held by the Court of Appeal

On his part, learned senior counsel

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for the respondent distilled a sole issue which he framed thus:

Whether the Court of Appeal was right in coming to the conclusion that, from the totality of the facts and record before it, there was no service of the Originating processes on the respondents by the appellant as required by law before the commencement of trial

My Lords, upon my intimate perusal of the main complaint of the appellant in his Notice and Grounds of Appeal, I take the humble view that the respondent’s sole issue captures the appellant’s agitation. So, for the avoidance of doubt, the issue which will be considered for the resolution of this appeal is the respondents’ sole issue.

ARGUMENTS ON THE SOLE ISSUE

APPELLANT’S SUBMISSIONS

At the hearing of the appeal on December 11, 2017, learned counsel for the appellant adopted the brief of argument filed on December 17, 2007. He devoted paragraphs 3.1 – 3.73; pages 8-24 of the brief to an obiter dictum in the judgment of the Lower Court.