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  • 2002-11-25
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Socfin Consultants Services v. Asuamah

SOCFIN CONSULTANTS SERVICES

[ SOCFINCO S.A. ]

ETIENNE DELBAR

V

ASUAMAH

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS ONYEJIFE EDOZIE, JCA ( Presided and Read the Lead Judgment )

OKWUCHUKWU OPENE, JCA

SIMEON OSUJI EKPE, JCA

CA/C/33/96

TUESDAY, 29TH JANUARY, 2002

ACTION - Undefended list action - Claims maintainable thereunder

ACTION - Undefended List action - Duty of trial court to ensure that there is no defence to the action before entering the suit in the undefended list

ACTION - Undefended List action - When triable issues are raised thereon -  What court must do

COMPANY LAW - Foreign company having intention of carrying on business in Nigeria - Duty to take steps to obtain incorporation as a separate entity in Nigeria - Sections 56-59, Companies and Allied Matters Act

EVIDENCE - Affidavit  - Unchallenged affidavit - Duty of court to accept

EVIDENCE – Affidavit evidence - Conflict therein - When oral evidence may or may not be required to resolve

FAIR HEARING - Audi alteram partem - Duty of court to give place thereto in undefended list procedure by considering notice of intention to defend before entering judgment

FAIR HEARING - Denial of - Whether failure to consider pending application amount to denial of fair hearing

JURISDICTION - Issue of jurisdiction - Two important aspects  of Application of

JURISDICTION - Jurisdiction of court - Importance of to adjudication -

Effect of lack of jurisdiction on decision of court

JURISDICTION - Jurisdiction of court - What determines

JURISDICTION - Jurisdiction of court - When exercisable - Factors determining

PRACTICE AND PROCEDURE - Application - Failure to consider pending application - Effect of

PRACTICE AND PROCEDURE - Service of process - Effective service of court process - Whether a pre-condition to adjudication

PRACTICE AND PROCEDURE - Undefended List action  - Defence irregularly put in - Duty of court not to disregard- Need to give place to principle of audi alteram partem

PRACTICE AND PROCEDURE - Undefended List action - Claims maintainable thereunder

PRACTICE AND PROCEDURE - Undefended List action - Duty of trial court to ensure that there is no defence to the action before entering the suit in the undefended list

PRACTICE AND PROCEDURE - Undefended List action - Liquidated money demand - What it presupposes

PRACTICE AND PROCEDURE - Undefended List action - When intention to defend shown by defendant - Duty of court to transfer the suit to general cause list for determination upon pleadings

PRACTICE AND PROCEDURE - Undefended List action - When triable issues raised thereon - What court must do

PRACTICE AND PROCEDURE - Writ of summons and service thereof Validity of - When appropriate to challenge - Effect of failure to do so preliminarily

WORDS AND PHRASES - Liquidated money demand - Meaning of

Issues:

1.            Whether the learned trial Judge was right to have granted the respondent leave to serve the writ on Socfinco in Port Harcourt and to have put the suit on the undefended list .

2.            Whether the High Court of Akwa Ibom State has jurisdiction

to entertain the matter. -

3.            Whether the learned trial Judge was right to have ruled that the service of the originating (and other) processes, issued at the respondent’s instance which processes were delivered to one Mrs. Henrietta Okoye at the office of one Combined Industrial Agro Consultants ( “CIACO”) Ltd. situate at No. 4 Yola Street, Amadi Flats, Port Harcourt, Rivers State, was proper service on the 1st appellant and adjudging that the knowledge of the pendency of the action imputed to one Etienne Delbar, General Manager of CIACO translated to good and proper service upon Socfin Consultants Services ( SOCFINCO) S.A.

4.            Whether the learned trial Judge in the circumstances of this case and upon the totality of all the materials available was right to have entered judgment against the 1st appellant in this matter on the 12th of  December, 1995.

Facts:

The plaintiff/respondent at Oron High Court, Akwa-Ibom State sought against the 1st appellant as defendant the sum of US Dollars 2,013,615 as monies due to the plaintiff/respondent with average interest of 21% based on two separate contract agreements referred to as memorandum of understanding between the parties dated 22nd June 1987 whereby the plaintiff/ respondent was to provide the defendant/1st appellant with certain consultancy services.

The plaintiff/respondent sought and obtained the leave of court to serve the writ of summons on the defendant/1st appellant out of jurisdiction at No. 4 Yola Street, Amadi Flats, Port Harcourt, Rivers State and to place the suit on the undefended list. The writ was served on one, Mrs. Henrietta Okoye. In reaction to the service of the writ a conditional appearance was entered for the defendant by its counsel who on the same date filed a motion seeking to set aside the service of the writ of summons on the grounds that the service was effected on Combined Industrial Agro Consultants Limited ( CIACO) which is different from the defendant/1st appellant whose address for service is No. 2 Place Du Champ De Mara 1050, Brussels, Belgium. The motion was argued and ruling was reserved for 12th December 1995. On the 6th of December 1995, before the ruling slated for 12th December 1995, the defendant/1st appellant filed another motion seeking an order arresting the ruling slated for 12/12/95 and an order dismissing the plaintiff’s/respondent’s suit. The latest motion was based on non-service of writ of summons on the defendant/1st appellant at its proper place of address in Belgium and that the suit was instituted at the wrong venue. On the same date, 6/12/95, the defendant/1st appellant filed yet another motion for extension of time to file notice of intention to defend the suit.

The learned trial Judge on 12/12/95 gave his ruling dismissing the two motions seeking to set aside the service of the writ of summons dated 5 th June 1995 and the 6th December, 1995 respectively. The trial Judge however, failed to rule on the defendants’/1st appellant’s motion on notice of intention to defend but proceeded to enter judgment for the plaintiff/ respondent for the principal sum claimed with 10% interest thereon.

Two appeals emanated from the judgment and rulings of trial court, one filed by the defendant/1st appellant and another filed by the 2nd appellant, the General Manager of the Company (CIAO) served with the writ of summons. The two appeals are consolidated herein.  The court considered the following laws:

Section 99 of the Sheriffs and Civil Process Act, 1990 which provides: “The period specified in a writ of summons for service under this part as the period within which the defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period.”

Order 23, rule 1of the Akwa Ibom State (Civil Procedure) Rules:

“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money and such application is supported by an affidavit setting forth in the grounds upon which the claim is based and stating that the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstance of the particular case.”

Section 54 of the Companies and Allied Matters Act, 1990 provides: “Subject to sections 56 - 59 of this Decree, every foreign company which before or after the commencement of this Decree was incorporated outside Nigeria and having the intention of carrying on business in Nigeria shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notice and other documents, as matters preliminary to incorporation under this Decree.”