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  • 2003-10-27
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SCOA Nig. Plc vs. Danbata

SCOA NIGERIA PLC

DR. M.F. BOULOUS

V

ALHAJI SANI YARO DANBATA

LEADERS & CO. LTD.

COURT OF APPEAL

( ABUJA DIVISION )

GEORGE A. OGUNTADE, JCA ( Presided and Read the Lead Judgment )

IBRAHIM TANKO MUHAMMAD, JCA

ZAINAB ADAMU BULKACHUWA, JCA

CA/A/121/2001

TUESDAY, 25TH MARCH, 2003

APPEAL - Court of Appeal - Duty of as an appellate court

COURT - Court of Appeal - Duty of as an appellate court

PRACTICE AND PROCEDURE - Motion paper - Issues raised therein -  Whether automatically means that same was argued

PRACTICE AND PROCEDURE - Writ of summons - Issuance and service of outside jurisdiction - Service - Prayer for leave to serve a writ outside jurisdiction - Whether automatically covers leave for issuance of the writ under Order 5 of High Court of the FCT (Civil Procedure) Rules

PRACTICE AND PROCEDURE - Writ of summons - Issuance of writ meant for service outside jurisdicton of Federal Capital Territory Abuja High Court - Proper procedure - High Court of Federal

Capital Territory Abuja (Civil Procedure) Rules, Order 5, rules 6  and  14

PRACTICE AND PROCEDURE - Technicalities - Impropriety of adherence to at the expense of justice

Issues:

1.              Whether the learned trial Judge was right in view of Order 5, rules 1, 6, 14 and 15 of the High Court of Federal Capital Territory, Abuja in holding that leave of court for service of a writ outside jurisdiction once granted constitutes an automatic grant of leave for issuance of the writ even when leave for issuance of the writ was not applied for or granted.

2.              Whether the learned trial Judge was right in not considering and making any pronouncement on the issue of non-compliance with section 99 of the Sheriffs and Civil Process Act, Cap. 407  Laws of the Federation of Nigeria,  1990.

Facts:

In suit No. FCT/HC/CV/737/2000, the 1st respondent was the plaintiff in an action brought against the appellants and the 2nd respondent at the High Court of Abuja. The suit was in defamation. The writ of summons and the statement of claim in that suit were filed together on 19/10/2000 after leave was granted to serve outside jurisdiction. The appellants, as 1st and 2nd defendants at the lower court, on 2/7/2001 brought an application praying for an order that the writ which was served outside jurisdiction be set aside on the following grounds:

“1. The plaintiff failed to comply with the mandatory conditions of the applicable rules of court.

2.              The plaintiff did not obtain the leave of court before the issuance of the writ of summons which was served out of jurisdiction and of which notice as in form 5 ought to have been given to the defendants.

3.              The plaintiff did not give notice of the writ of summons to the 1 st, 2nd and 3rd defendants who were served out of jurisdiction in Lagos State.

4.              The plaintiff failed to comply with the mandatory provision as contained in section 99 of the Sheriffs and Civil Process Act, Cap. 407 of the Federation of Nigeria, 1990.”

The 1st and 2nd defendants filed an affidavit in support of the application to which the plaintiff responded by filing a counter-affidavit. After hearing arguments on the application on 26/7/2001, the lower court ruled against the application and dismissed same. The applicants being dissatisfied with the ruling of the lower court, appealed to the Court of Appeal on three grounds of appeal.