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  • Dauphin Nig.Ltd v. M.A.N.
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  • 2001-04-23
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Dauphin Nig.Ltd v. M.A.N.

DAUPHIN NIGERIA LIMITED

V

MANUFACTURERS ASSOCIATION OF NIGERIA

CHIEF RUFUS GIWA

MR.  UZOR OKEKE

COURT OF APPEAL

( LAGOS DIVISION )

G. A. OGUNTADE, JCA (Presided and Read the Lead Judgment)

SULEIMAN GALADIMA, JCA

PIUS OLAYINWOLA ADEREMI, JCA

CA/L/416/99

MONDAY, 22ND JANUARY, 2001

JUDGMENT AND ORDERS - Order - Interim order obtained ex-parte -  Application to set aside such order for material concealment of facts vis-a-vis application to punish defendant for non-compliance with the order - Need to determine the former first

JUDGMENT AND ORDERS -Interim or ex-parte order  - Where irregularly obtained by suppression of material concealment of facts - Whether can be discharged

JURISDICTION - Lack of jurisdiction  - Where due to non-service of process -  Whether deprives court of jurisdiction in toto

PRACTICE AND PROCEDURE - Service of process - Failure to serve -  Effect  on order made

PRACTICE AND PROCEDURE - Service of process - Invalid service -  Whether should lead to striking out the names of parties invalidly

served

PRACTICE AND PROCEDURE - Service of process - Non-service

-   Whether deprives court of jurisdiction in toto

PRACTICE AND PROCEDURE - Service of process - Originating process -  Need for personal service

PRACTICE AND PROCEDURE - Service of process - Service of originating process on a company - Various modes of - Whether serving employee amounts to proper service

Issues:

  1. Whether improper service of originating process robs the court of jurisdiction.
  2. Whether a party to a suit who had acknowledged receipt of the court’s process can complain of non-personal service, and in view of the proof of service furnished by the court’s bailiff.
  3. Whether it was proper for the trial court to entertain the application of the defendants to set aside the interim order when they were obviously in contempt of court of the same order and in the fact of  a pending application for contempt.

Facts:

The suit leading to this appeal was commenced before the Federal High Court, Lagos where the appellant, as plaintiff, sued the defendants, now respondents, claiming, inter alia:

  1. Declaration that by the retirement of the 3rd defendant from the 2nd defendant’s company that presented him as its representative in the 1st defendant, the 3rd defendant no longer have (sic) authority to act as and or exercise the functions of the president of the 1st defendant without being sponsored by another member and being elected at a duly elections (sic) for the appointment of a president.
  2. Declaration that the actions of the 3rd defendant purportedly as president of the 1st defendant after his said retirement from the 2nd defendant over a year ago are illegal, null and void and of no effect whatsoever.
  3. Injunction restraining the 3rd defendant from continuing to parade himself as the president of the 1st defendant till the determination of the case.

The plaintiff/appellant also filed a motion for interim injunction to restrain the 3rd defendants form continuing to parade himself as the president of the Manufacturers Association of Nigeria (M.A.N.) pending the determination of the motion on notice filed in the case; injunction restraining the defendants, jointly and severally, from recognising the 3rd defendant as the president of 1st defendant or Chairman of its Export Group pending the determination of the motion on notice filed in the case.

The trial court granted the application ex-parte as prayed. But subsequently, the 3rd and 4th defendants before the lower court (i.e. Chief Rufus Giwa and Mr. Uzor E. Okeke) jointly brought an application to set aside the purported service of the summons and other originating processes in the suit on the 1st, 3rd and 4th defendants, an order to vary or discharge the order of interim injunction made against the 1st, 3rd and 4th defendants; an order striking out the entire suit on the ground that the same disclosed no reasonable cause of action, etc.

The affidavit in support of this application showed that the plaintiff concealed material facts which enabled it to succeed in its ex-parte application for interim injunction. It was also shown that the 3rd and 4th defendants were not personally served as required by law. After taking arguments in the light of the affidavit and counter-affidavit of the parties, the trial court in its ruling struck out the names of the 1st, 3rd and 4th defendants from the suit. It also set aside the order of injunction made. Dissatisfied, the plaintiff appealed.