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  • Coker v. Obawole
  • 131
  • 2002-12-02
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Coker v. Obawole

JAMES OLUGBOYEGA COKER

MRS. JOLADE O. K. AJAYI

MRS. SULOLA A. SHONEKAN

MRS. MOFOLUWA OLUGE

MRS. OLUFEMI FATUNDE

V

LAMIDI LAWANI OBAWOLE

[ For and on behalf of Obawole Aina Arupe family ]

MADAM IYABODE GEORGE

BEATRICE OLATUNJI GEORGE

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

PIUS OLAYIWOLA ADEREMI, JCA ( Read the Lead Judgment ) CHRISTOPHER MITCHELL CHUKWUMAH-ENEH, JCA

CA/L/380/95

THURSDAY, 4TH JULY 2002

COURT - Service of court process - Service through a co-defendant Whether meets the requirement of proper service on a defendant

COURT - Service of process of - Writ of summons and other processes of court - Lack of proper service of same - Effect of

PRACTICE AND PROCEDURE - Affidavit of service - Purpose of

PRACTICE AND PROCEDURE - Death of a party - Substitution of such party - Need to serve substituted party with court processes and orders - Where not served - Effect

PRACTICE AND PROCEDURE - Proof of service - Best evidence for

PRACTICE AND PROCEDURE - Proof of service - Swearing of an affidavit of service by a clerk in chambers - Whether can take the place of certificate of service sworn to by bailiff of court

PRACTICE AND PROCEDURE - Service of court process - Service through a co-defendant - Whether meets the requirement of proper service on a defendant

PRACTICE AND PROCEDURE - Service of court process - Writ of summons and other processes of court - Lack of proper service of same - Effect of

PRACTICE AND PROCEDURE - Service of process - Failure of person allegedly served by opponent to appear in court - Attitude of court thereto

PRACTICE AND PROCEDURE - Service of process - Order for substitution and consequential amended writ - Need to serve same on person substituted for the deceased original party - High Court of Lagos State (Civil Procedure) Rules, Order 14 rules 20, 21 and 34

Issues:

1.            Whether on the printed record of proceedings, there is legal proof that the appellants were duly served with the necessary court processes, before the lower court proceeded to hear and dispose of the matter against them.

2.            Whether the hearing and the determination of the case by the trial Judge in the absence of the appellants without notice to them of the hearing dates, did not breach the principle of audi alteram partem and the appellants’ constitutional right of fair hearing.

3.            Whether the learned trial Judge was correct to proceed with the trial of the suit when the plaintiffs/appellants abandoned the suit.

Facts:

The original plaintiff in this suit Chief Abolade Coker claimed against the original defendants declaration of title to land in dispute, special and general damages for trespass and perpetual injunction. The original plaintiff with leave of court withdrew the suit against the original defendants who were (1) Acceptance Engineering Co. Ltd. (2) Chief C. M. Olubode while leaving only Dr. Daniel B. George as defendants.

Subsequently,  Saliu Aina Arupe, Lamidi Lawani Obawole and Alimi Fatusi for themselves and on behalf of the Obawole Aina Arupe family obtained leave of court to be joined as 4th, 5th and 6th defendants respectively. Upon demise of the original defendant (Dr. Daniel B. George), Madam Iyabode George and Beatrice Olatunji George were substituted for him as 2 nd and 3rd defendants.

The 4th and 5th defendants counter-claimed against the plaintiff and the 1st - 3rd defendants. The first defendant (Acceptance Engineering Company Limited) filed an amended statement of defence and defence to counter-claim of the 4th to 5th defendants. The counter-claim was subsequently withdrawn against the 1st defendant. The original plaintiff also died and was substituted by the appellants by an order of court. The case which had commenced hearing before the death of the original plaintiff was adjourned for continuation of hearing after the said substitution.

On the next adjourned date 24/2/93, the substituted plaintiffs were absent in court and not represented by counsel until judgment was delivered on 16th December 1994 whereupon the plaintiffs’ claims were dismissed while the reliefs sought in the counter-claim of the 4th and 5th defendants were granted. Aggrieved, plaintiff appealed to the Court of Appeal.