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  • 2003-10-27
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Dickson vs. Okoi

FELIX DICKSON

V

CHIEF MARCUS OKOI

MARTIN OKOI ETENG

RICHARD EMMANUEL

COURT OF APPEAL

( CALABAR DIVISION )

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

SIMEON OSUJI EKPE, JCA

SULE AREMU OLAGUNJU, JCA

CA/C/73M/99

TUESDAY, 11TH JUNE, 2002

APPEAL - Record of appeal - Materials not before the lower court - Duty on parties to exclude  therefrom - Impropriety of counsel smuggling extraneus matters into record of proceedings

COURT - Judge - When can set aside own judgment

COURT - Trial court - Materials not before same - Duty on parties to exclude from the record of appeal

COURT - Trial Judge - When becomes functus officio

JUDGMENT AND ORDERS - Judge - When can set aside own judgment

PARTY - Duty on to exclude materials not before the lower court from the record of appeal

PRACTICE AND PROCEDURE - Court process - Service thereof - Party evading service of court process - Consequence of

PRACTICE AND PROCEDURE - Judge - When can set aside own judgment PRACTICE AND PROCEDURE - Originating processes - Whether a requirement of law to serve same together with order for substituted service - Order 12, rule 5, Cross River State High Court (Civil Procedure) Rules considered

PRACTICE AND PROCEDURE - Process of court - Personal service thereof - When can be dispensed with

PRACTICE AND PROCEDURE - Trial Judge - When becomes functus officio

PRACTICE AND PROCEDURE - Writ of summons - Issuance and service of - Importance of to court’s jurisdiction

Issues:

1.             Whether the service of a copy of originating process on the 3 rd respondent (1st defendant) and he refusing to accept service on behalf of the appellant (3rd defendant) inspite of an order of court would amount to service of the originating process on the appellant (3rd defendant).

2.             Whether the non service of the hearing notice ordered by the court on the appellant (3rd defendant) did rob the trial court of jurisdiction to hear and determine the suit as it relates to the appellant (3rd defendant).

3.             Whether the 3rd respondent (1st defendant) who was jailed and serving prison sentence could have been an agent for the appellant (3rd defendant).

Facts:

The plaintiff commenced this suit against the three defendants from whom he claimed jointly and severally the sum of N1,025,000 (one million and twenty five thousand naira) only being money received by the defendants from the plaintiff for a consideration that never passed together with interest on the said amount from 29/6/95 till judgment.

The three defendants acting in concert through a letter purportedly written by the plaintiff’s brother resident in the United States of America falsely represented to the plaintiff that his said brother had directed him to clear from the Calabar Sea Port certain goods for a cold room shipped to the plaintiff who was shown fake clearing documents and a fake 40ft container in respect of the goods. Believing in the representation, the plaintiff paid over to the defendants at the latter’s request a total sum of N1,025,000.00 (one million and twenty five thousand naira) only. It is to recover this colossal amount after discovering the falsity of the representation and reporting the matter to the police that the plaintiff on 5 th March, 1996 commenced this suit against the defendants.

In the prosecution of this action, the plaintiff sought and was granted leave of court for the writ of summons, statement of claim and all subsequent processes in the case to be served on the 2nd and 3rd defendants through the 1st defendant. On being served, the 1st defendant filed a motion to set aside the order for substituted service which motion was struck out on 30/ 6/96.

The plaintiff further served the 3rd defendant who declined service. On 22/10/97 and 13/11/97, the court in the absence of the defendants took the evidence of the plaintiff and on 16/12/97 entered judgment in favour of the plaintiff for the amount claimed with interest.

The plaintiff executed the judgment on the property of 3rd defendant who consequently filed a motion praying the court to among other things set aside the judgment of the court for being a nullity. This application was dismissed in a ruling delivered by the court on 5/10/98.

It is against the ruling dismissing his application that the 3rd defendant has lodged this appeal.