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Federal Polytechnic Idah v. Onoja

THE FEDERAL POLYTECHNIC IDAH

V

ENG. AKOH SAMUEL ONOJA

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE ADESOLA OGUNTADE, JCA ( Presided )

PIUS OLAYIWOLA ADEREMI, JCA ( Read the Lead Judgment ) 

CHRISTOPHER MITCHELL CHUKWUMAH-ENEH, JCA

CA/L/54/98

MONDAY, 1ST JULY, 2002

ACTION - Commencement of action  - By originating summons instead of writ of summons - Whether puts an end to plaintiff’s case

APPEAL - Discretion of trial court - Decision borne out of exercise of such exercise - When appellate court may set aside

APPEAL - Judgment, ground of appeal and issue for determination - Need for direct connection among the three

COURT  - Trial court - Decision borne out of exercise of its discretion When appellate court may set aside

PRACTICE AND PROCEDURE - Commencement of action by originating summons instead of writ of summons - Whether puts an end to plaintiff’s case

PRACTICE AND PROCEDURE - Originating summons - Advantage of

PRACTICE AND PROCEDURE - Originating summons - Impropriety of commencing action in hostile proceedings through originating summons

PRACTICE AND PROCEDURE - Originating summons - When affidavit of plaintiff leaves matters for conjectures -Impropriety of commencing such action by originating summons

PRACTICE AND PROCEDURE - Rules of court directing the commencement of suit - Purpose of as aid to course of justice - Need not to be allowed to stand in the way of justice

Issues:

1.            Whether the High Court of Lagos State Civil Procedure Rules are applicable at the Federal High Court.

2.            Whether there exists a lacuna in the Federal High Court Civil Procedure Rules to necessitate application of the High Court of Lagos Civil Procedure Rules vis-a-vis the respondents suit

3.            Whether the respondent’s claim as formulated in the court below falls within the nature of actions that can be commenced by way of originating summons.

4.            Whether the respondent’s claim is the construction of his contract of service with appellant vis-a-vis compliance with statutory provision and letter of appointment and other attached document of master and servant relationship simpliciter.

5.            Whether the documents attached to the respondent’s summons are public documents or private documents

6.            Whether ground 3 of the Notice of  Appeal relates to any order made by the lower court on 20th November, 1996 as alleged by the appellant.

7.            Whether the Court of Appeal should and can inquire into the exercise of discretionary power of the court below on matter of fact when it has not occasioned a miscarriage of justice visa-vis transfer of suit to another judicial division.

8.            Whether ground 2 of the additional ground of appeal relates to any act or order of the lower court.

Facts:

Respondent who was plaintiff at the Federal High Court Lagos commenced this action by originating summons while the appellant as 1st defendant together with 2nd and 3rd defendants filed an application praying the court to decline jurisdiction to entertain the suit for reason of being incompetent for non-fulfilment of the condition precedent for the institution of the action. Alternatively to strike out the names of 2nd and 3rd defendants for misjoinder.

The appellant together with the 2nd and 3rd defendants filed a subsequent application seeking an order of transfer of the suit from Lagos to Abuja or Enugu by reason of closeness of the two divisions to the parties.

At the conclusion of hearing of the application, trial court refused the prayer urging it to decline jurisdiction in the 1st application and allowed the prayer to strike out the names of the 2nd and 3rd defendants.

On the issue of  transfer of the case to Abuja or Enugu, the trial court refused the prayer on the ground that there is only one Federal High Court in Nigeria and it lied in the discretionary power of the court to transfer cases before it to another division, where the applicant had made a good case for it.

Dissatisfied by the ruling, appellant appealed to the Court of