Legalpedia Citation: (2014) Legalpedia (CA) 11781
In the Court of Appeal
HOLDEN AT LAGOS
Fri Nov 7, 2014
Suit Number: CA/L/199B/2013
CORAM
PARTIES
COSMAS MADUKA APPELLANTS
1. DR PATRICK IFEANYI UBAHCAPITAL OIL AND GAS LTD
2. INSPECTOR GENERAL OF POLICECP AYOTUNDE OGUNSAKINAIGBOJE AIG-IMUOKHUEDE
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 1st Respondent approached the Appellant in his capacity as the President of Coscharis Motors Limited to assist him revive the business of the 2nd Respondent. The Appellant (Coscharis Motors Ltd) then entered into a joint business relationship with the Respondents for the importation of Premium Motor Spirit(PMS) with Coscharis providing the funds and the Respondents to provide logistics, and sales of the product. In order to enhance the joint business, the Appellant obtain bank facilities from Access Bank Plc and a joint account was opened in the name of both the Appellant and Respondents and the Respondents are to pay into the account the proceed of sales. The Respondents received the shipments relating to the Letters of Credit but only paid the proceeds of 6 into the joint account and diverted the remaining four. The Respondents at a stage admitted receipt of the remaining 4 shipment and later denied receipt of same. The Appellant therefore reported to the Nigeria Police complaining of the Respondents action. The Police invited officers of both the Appellant and the Respondents. The Respondent thereafter filed an originating motion at the trial court alleging that their fundamental rights had been violated. The Appellant raised a preliminary objection praying the Court to decline jurisdiction against him on the ground of non service of the originating process on him. The trial Court held in favour of the 1st and 2nd Respondents. Aggrieved the Appellant have appealed to the Court of Appeal.
HELD
Apeal Allowed
ISSUES
1. Whether the Learned trial court was right when it dismissed the Appellants Notice of Preliminary Objection dated 28/01/13 and filed on 6/02/13 as lacking in merit”?
2. Whether considering all the circumstances of the case and the materials placed before it, the Learned Trial Court was right in holding that the fundamental rights of the 1st and 2nd Respondents were violated by the actions of the Appellant”. (Grounds 3, 4 and 5)?
RATIONES DECIDENDI
SERVICE OF ORIGINATING PROCESS – EFFECT OF NON COMPLIANCE WITH THE MODE OF SERVING ORIGINATING PROCESS
”Where the law requires an originating process to be served personally on the defendant, failure to serve personally would mean that the case did not come before the court by due process of law and that one of the conditions precedent to the exercise of jurisdiction by the court has not been fulfilled. Madukolu v. Nkemdilim C1962) 1 All NLR 487.”
SERVICE OF ORIGINATING PROCESS – ORDER V RULE 2 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES 2009
“Originating application must be served on all parties directly, so long as a service duly effected on the Respondent’s agent will amount to personal service on the Respondent
DOCUMENTARY EVIDENCE – ADMISSIBILITY OF PUBLIC DOCUMENT
”The documents to be legally admissible must be certified true copies.”
COMMISSION OF CRIME – IT IS THE DUTY OF EVERY CITIZEN TO REPORT THE COMMISSION OF A CRIME AND THE POLICE TO INVESTIGATE SAME
”Indeed, every citizen has a right or even a duty to report to the Police anyone suspected of committing a crime and the Police have a corresponding duty to investigate the report in the course of their statutory function of prevention, detection of crimes and generally preservation of law and order.”-
NON SERVICE OF ORIGINATING PROCESS – EFFECT OF NON SERVICE OF ORIGINATING PROCESS ON A PARTY
“Any proceedings predicated on non service of the originating process on a party is a nullity and susceptible to be set aside at the instance of the party that was not served the originating process. See Ayogu v. Nnamani (2004) 15 NWLR (pt. 895) 134, Makeri Smelting Co. Ltd v. Access Bank (Nig) Plc. (2002) 7 NWLR (pt. 766) 447, Socite General Bank (Nig) Ltd. v. Adewunmi (2003) 6 SCM 133 and ACB International Bank Plc. v. Otu and Anor. (2008) 1 SC (pt. 11) page 1”.
CASES CITED
STATUTES REFERRED TO
2. Fundamental Rights (Enforcement Procedure) Rules 2009