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CaseLaw

Kida V. Ogunmola (2006) CLR 6(a) (SC)

Judgement delivered on June 16th 2006

Brief

  • Jurisdiction of court
  • Originating processes
  • Service of process

Facts

In the High Court of Justice of Borno State of Nigeria, in the Maiduguri Judicial Division and in suit No.M/391/94, the Plaintiff claimed against the Defendants as follows:-

  • a.
    An order for specific performance compelling the Defendants jointly and severally to conclude the agreement for assignment in respect of property situate and lying at No.4A Ahmadu close Damboa Road, GRA Maiduguri between the Plaintiff and the Defendants by delivering of the title deeds and the physical possession of the said property to the Plaintiff. Or in the alternative-An order for the repayment to the Plaintiff the sum of N625,000.00 by the Defendant being the sum collected by the Defendants from the Plaintiff as consideration for the assignment of the said property. N50,000.00 General damages for the breach of contract.
  • b.
    The cost of the suit." The five Defendants mentioned in the suit included the Respondent herein Mr. A.D. Ogunmola who was the second Defendant. It appears from the printed record, that the Court bailiff was only able to serve personally the A Writ and the accompanying Statement of Claim on the 1st Defendant and the 5th Defendant, both through the 1st Defendant, Pastor Mohammed Audu Mshelia. In an enrolled order issued by the learned trial Judge, leave was granted to the Plaintiff to:-
  • 1.
    Issue and serve the 2nd Defendant (Respondent herein) with the Writ of Summons and other Court processes out of jurisdiction.
  • 2.
    An Order to serve the 2nd, 3rd and 4th Respondents/Defendants with the Writ of Summons and other Court processes by means of substituted service by pasting same at 4A Ahmadu Bello close, GRA, Maiduguri, being the last known place of abode of the 2nd, 3rd and 4th Respondents/Defendants."

Apparently when none of the Defendants filed a defence to the Statement of Claim accompanying the Writ of Summons, and apparently when 2nd, 3rd and 4th Defendants were served, the Plaintiff filed a motion praying for Judgment to be entered in default of Statement of Defence against all the Defendants. In opposition to this application, the first Defendant filed a counter- affidavit on the 26/11/1996, while on the 18/10/1995 the 2nd and 5th Defendants, applied by a motion on Notice and prayed for orders to extend time within which to enter conditional appearance and to deem the proposed Memorandum of appearance under protest as duly filed. In his ruling delivered on the 26/3/1996, the learned trial Judge granted extension of time to enter the conditional appearance and deemed the appearance under protest as duly filed.

On the 12/6/1996, the Plaintiff's motion to enter judgment in default of defence against the Defendant was moved by the learned counsel for the Plaintiff. Only the 1st Defendant was represented by counsel who opposed the application, the other Defendants including the 2nd Defendant, the Respondent herein, were absent from Court, though they were said to have been served. In his Ruling on the aforesaid Motion delivered on the 24/12/1996, the learned trial Judge granted the Plaintiff's prayer and entered Judgment in default of defence against all the Defendants, including the 2nd Defendant. In the said judgment, the learned trial Judge ordered the Defendants including the 2nd, to jointly and severally refund the sum of N625,000.00 to the Plaintiff, including costs. In order to execute the judgment, the Plaintiff successfully obtained an ex-parte order granting him leave for the attachment and sale of the property situate at 4A Damboa, Road, GRA Maiduguri in the satisfaction of the judgment.

Issues

  • Whether in the circumstances of this case, the Court below was right in...
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