United Bank for Africa Plc V. Ayomene Oladele Odimayo & Anor (2004)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

The appellant herein took out a writ of summons at the Ikeja Division of the Lagos State High Court, seeking to enforce the judgment of the United States District Court of Southern New York in suit No. 93/CIV/3998 Wk dated 29th July, 1994, against the respondents then being defendants.

The writ of summons and statement were endorsed for service on the respondents at Grail land, Iju, Agege in Lagos State.

Unable to serve the respondents the processes, the appellant applied for and secured the lower court’s order for substituted service by advertising the writ and statement of claim in the Daily Times Newspaper a daily in circulation within the court’s jurisdiction. The affidavit in support of the application for the order to serve the writ of summons and statement of claim by substituted means averred to the fact that respondents could not be located either at their resident at Grail land or office at No. 8A Ogundana Street, Off Allen Avenue, Ikeja, Lagos, for the court’s processes to be served on them personally.

The writ of summons and statement of claim were eventually advertised in the Daily Times Newspaper pursuant to the leave acquired from the lower court. Messrs George Etomi & Partners, counsel to the respondents were also served the same processes a fact which was acknowledged by the said counsel. The same firm of solicitors also entered unconditional appearance for the respondent’s vide a memorandum of appearance dated 21st November, 1994.

The appellant on being served with respondents counsel memorandum of appearance applied for leave of the court for final judgment to be entered against the respondents.

By a notice of motion dated and filed on 4th January, 1995, the respondents sought the court’s order striking out the writ of summons taken out against them by the appellant. The application was on the grounds:-

“(1) That the defendants at the time of the issuance of the writ of summons were not resident in Nigeria and leave of court ought to have been obtained to issue and serve the writ of summons out of the jurisdiction of the court.

(2) That no leave of court was obtained to issue and serve the writ of summons and statement of claim outside the jurisdiction of court.”

The respondents filed another motion on notice on 30th October, 1995, for:-

“(1) An order striking out the writ of summons dated 4th day of October, 1994.

(2) An order setting aside the order of substituted service, statement of claim in this suit dated 31st day of October, 1994.

(3) An order setting aside the substituted service of the writ of summons and statement of claim in this suit on counsel to the defendants/appellant George Etomi & Partners.”

The application was made on the grounds: