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  • 2002-08-19
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Ames Electrical Co. Ltd v. Fed. Airports Authority of Nig

AMES ELECTRICAL CO. LIMITED

V

FEDERAL AIRPORTS AUTHORITY OF NIGERIA

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA

WALTER S. NKANU ONNOGHEN, JCA ( Read the Lead Judgment )

CA/IL/25/2000

THURSDAY, 12TH JULY, 2001

ACTION - Pre-action notice - Non-compliance therewith - Objection thereon -  When and how raised

ACTION - Pre-action notice - Objection relating to non-service of - When can be raised - Whether can be raised in statement of defence

APPEAL - Preliminary objection to hearing of appeal - Incorporating objection in brief of argument - Whether proper - Need for objector to give three days’ notice of objection to appellant and move application before hearing of appeal - Order 3 rule 15(1) Court of Appeal Rules, 1981

COURT - Pre-action notice - Question relating to non-service of - Duty of court to examine all processes filed to determine the jurisdiction to entertain the suit

EVIDENCE - Affidavit - Counter-affidavit - When filing of counter-affidavit not required

EVIDENCE - Affidavit evidence - Failure of applicant to file affidavit in support of application or state facts relevant to application in affidavit in support - Whether necessary for respondent to file counter-affidavit

JURISDICTION - Court lacking jurisdiction - Proper order to make by court

JURISDICTION - Issue of jurisdiction - When can be raised - Whether can be raised before the filing of statement of defence

JURISDICTION - Jurisdiction of court - Plaintiff’s claim as determinant of

PRACTICE AND PROCEDURE - Demurer proceedings - Nature and purport of - Defendant claiming that plaintiff’s action be dismissed on points of  law - Effect of

PRACTICE AND PROCEDURE -  Pre-action notice - Non-compliance therewith - Objection thereto - When and how raised

PRACTICE AND PROCEDURE - Service of writ of summons - Improper service - Effect on jurisdiction of court - Need for objection relating thereto to be raised timeously before the filing of statement of defence

-  Effect of filing such objection after taking steps in the proceedings

Issue:

Having regard to the facts and circumstances of the case, whether the trial Judge was right to have dismissed the case of the plaintiff/ appellant for non-compliance with section 26(2)  of the Federal Airports Authority of Nigeria Decree No. 9 of 1986 which requires pre-action notice to respondent.

Facts:

By his writ of summons in suit No. FHC/IL/CS/30/98 and statement of claim filed on 31 /12/98, the plaintiff/appellant claimed against the defendant/respondent, Federal Airports Authority of Nigeria, the sum of N638,574.14 with interest.

On the 20th of July, 1999, the defendant/respondent without filing a statement of defence filed a notice of preliminary objection supported by an affidavit alleging non-service of pre-action notice as required by Decree No. 9 of 1996 and improper service of the writ of summons and the statement of claim.

At the conclusion of arguments, the trial court in a considered ruling upheld the objection and dismissed the suit.  The appellant  being aggrieved with the ruling has now appealed against the ruling.

In determining the appeal, the Court of Appeal considered the statement of claim particularly its paragraphs 15 and 16 where the appellant averred that he actually served the notice.