ESTATE OF LATE CHIEF HUMPHREY I. S. IDISI v. ECODRIL NIGERIA LIMITED & ORS

An order for the sum of N250, 000, 000. 00 (Two Hundred and Fifty Million) against the first defendant which monies are not being contested by the first defendant but in possession of the second and third defendants; as monies (sic) due and shall fall due to the first defendant from the second and third defendants as facilitator and chairman of the second and third defendants’ companies; being monies/amount/sum owed the plaintiffs by the first defendant for items supplied by the second plaintiff to the first defendant and was fully paid for and satisfied (sic) by the first plaintiff to the second plaintiff on behalf of the first defendant – the facilitator and chairman of the second and third defendants between the period of 1998 to 1999, on running supply contracts within the jurisdiction of this Court; which the first defendant has refused and/or failed to make good till date to the first plaintiff
[Page 11 of the record, Italics supplied for emphasis] From the tenor of the italicised subordinate clause in the above relief, it is not in doubt that the claim was anchored on an alleged contract entered into between the appellant and the third and fourth respondents: a?contract from which the sum due, namely, N250, 000, 000.00 (Two Hundred and Fifty Million Naira), eventuated. Put differently, the third and fourth respondents [as plaintiffs] sued on the contract which they entered into with the appellant. In effect, the first and second respondents, not being privy to the said contract, were total strangers to it.
That notwithstanding, the originating processes were not served on them [that is, the first and second Respondents]. Rather, the bailiff dropped copies of an alien process in the appellant’s office at Sapele.
Curiously, he [for himself and on behalf of the first and second respondents] engaged the services of one A. K. Osawota who, at the hearing of the matter at the High Court on February 3, 2000, purportedly represented not only the appellant but also the first and second respondents. In what evidently smacked of unprofessional conduct, he did not oppose the application of the plaintiffs’ counsel for judgment. The trial Court, accordingly entered judgment against the appellant and the first and second respondents.
Upon becoming aware of the judgment, the first respondent beseeched the trial Court with an application
for stay of execution of the judgment and for an order to set it aside. The Trinitarian Grounds of the application, which should have called for considerable circumspection on the part of the trial Court, were as irreproachable as they were formidable:
(i) The second respondent is not a juristic person capable of suing or being sued in a Court of law;
(ii) The Originating Summons in this action was not served on the first respondent as prescribed by law;
(iii) There was a breach of fair hearing as the first respondent was neither heard nor given an opportunity to be heard before the Order of Court dated 3rd February, 2000 was made against it.
[Italics supplied for emphasis] The trial Court, even in the face of these weighty grounds that raised formidable constitutional questions, chose to dismiss the application, whereupon the applicants approached the Court of Appeal, Benin Division [hereinafter, simply referred to as “the lower Court”] with their complaints. The judgment of the lower Court, which favoured the applicants, prompted the appellant’s appeal to this Court. He framed four issues for the determination of his appeal, viz:
1. Whether the findings/consideration of facts in the supplementary records by the lower Court after admitting that the records are not in the file, has not occasioned miscarriage of justice, particularly, in the
light of the dismissal of the preliminary objection?
2. Whether the lower Court was right when it held that the first and second respondents were not served the

…………………….B…………………….