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  • 2003-12-08
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Famfa Oil Ltd. vs. Att.-Gen., Federation

FAMFA OIL LIMITED

V

ATTORNEY-GENERAL OF THE FEDERATION

NIGERIAN NATIONAL PETROLEUM CORPORATION

SUPREME COURT OF NIGERIA

SALIHU M. A. BELGORE, JSC ( Presided and read the Lead Judgment )

UTHMAN MOHAMMED, JSC

ANTHONY IKECHUKWU IGUH, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

DENNIS ONYEJIFE EDOZIE, JSC

SC. 305/2002

FRIDAY, 17TH OCTOBER, 2003

COURT - Officials of court - Mistakes made by - Whether should be visited on parties

COURT - Rules of court - Non-compliance therewith - Where alleged Burden of proof of - On whom lies

EVIDENCE - Proof - Non-compliance with rules of court - Burden of proof of - On whom lies

PRACTICE AND PROCEDURE - Court officials - Mistakes made by Whether should be visited on parties

PRACTICE AND PROCEDURE - Originating summons - Applicant for  Whether has a duty to obtain signature of the judge on same Failure of Judge to sign originating summons - Whether fatal to applicant’s case

PRACTICE AND PROCEDURE - Originating summons - Signing of same by the registrar instead of the Judge - Whether vitiates the suit

PRACTICE AND PROCEDURE - Originating summons - Types of actions that may be instituted thereby - Procedure thereunder

PRACTICE AND PROCEDURE - Procedural irregularities - When will vitiate the main suit

PRACTICE AND PROCEDURE - Procedure - Purpose of in the administration of justice - Whether procedural irregularity should vitiate a suit

PRACTICE AND PROCEDURE - Rules of court -  Non-compliance therewith - Burden of proof of - On whom lies

Issues:

1.              Whether or not the fact that it was the Registrar and not the Judge who signed the originating summons constitutes an incurable irregularity which invalidates the said summons or renders it a nullity.

2.              In considering the correct answer to question (i), whether or not it is material whose lapse led to the ‘irregularity’ in the said summons.

Facts:

Appellant as plaintiff at the Federal High Court, Abuja, took out an originating summons ostensibly under Order 7, rule 8 of the Federal High Court Rules, 2000.

Due to an unexplained reason the originating summons sent to the defendants (now respondents) was not signed by the Judge, rather, a registrar of the court by name Ojo, signed the summons. When the originating summons as signed by the aforesaid registrar was served on the respondents, the 1st respondent, the Attorney-General of the Federation, reacted by entering an unqualified appearance. The 2nd respondent also raised a preliminary objection to the summons.

Trial court overruled the preliminary objection and held that the error was not fatal to the originating summons and was a mere irregularity.  On appeal to the Court of Appeal, the Court of Appeal however allowed the appeal and held that the originating summons was not issued.

Dissatisfied, appellant has further appealed to the Supreme Court.

The Supreme Court considered Order 7, rule 8 of the Federal High Court  Rules which provides:

“An originating summons is issued upon its being signed by a Judge in chambers.”