Western Union Money Transfer Service V. Lt Col. Roy M.d. Alli & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Cross River State delivered on 2nd February, 2007. The 1st Respondent as plaintiff took out a writ against, the Appellant as the 2nd defendant and First Bank of Nigeria Plc 2nd Respondent and Vanguard Media Ltd as 3rd Respondent in this appeal. The 1st Respondent of the material time 26th April, 2004 claimed to be in the Nigeria Army serving in Calabar.

He also claimed to have sent N10,000.00 to one Sergeant Adamu Salihu Adamu also of the Nigeria Army Zaria. 48 hours after this transaction via Western Union, the money was not received in Zaria. On enquiry, the 1st Respondent was informed that the money was seized as he was suspected to be a terrorist. This incident was thereafter reported by the Vanguard Newspapers with the caption “You are a terrorist”

Thereafter, the 1st Respondent sued First Bank Nigeria Plc as 1st Defendant, Western Union Money Transfer Services as and Defendant and Vanguard as 3rd Defendant. The 1st Respondent as plaintiff claimed the following reliefs against the defendants jointly and severally.

(a) 10,700.00 being refund of money unlawfully seized by the 1st and 2nd Defendants.

(b) A Declaration that he is not a terrorist

(c) 2 Billion (Two Billion Naira) as damages for defamation of his character, resulting in his loosing promotion and being put under threat and investigation by Military authorities.

When the 2nd Defendant/Appellant got to know about the action, it put in a conditional appearance and filed a Preliminary Objection against the competency of the suit and prayed for this suit to be struck out. The grounds for this objection are as follows:-

1. That the person named as 2nd Defendant in the Writ of Summons (and other processes) in this suit is not a person known to law.

2. Alternatively or in addition, that the 2nd Defendant was never served with the Writ of Summons (or any other process) in this suit as required by law.

3. Further alternatively or in addition, the Plaintiff has no cause of action against the 2nd Defendant, and consequently the 2nd Defendant is wrongly and improperly named as a Defendant in this suit.

The 1st Respondent did not react to this Preliminary Objection nor file any counter Affidavit. The trial Judge in his considered ruling dismissed the Appellant’s Preliminary Objection. The trial Judge held inter alia.

The issuance and service of the writ on the Appellant at 35 Marina, Lagos without leave was valid and proper service; and 1st Respondent’s claims disclosed a cause of action against the Appellant.

Being dissatisfied with this ruling, the Appellant filed his notice and 4 grounds of appeal. The Appellant also filed his Appellant’s brief on 22nd May, 2009 but deemed properly filed and served on 19th May, 2010. In it the Appellant articulated 3 issues for determination as follows: