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  • K.B. Dallaz Motors Ltd v. Borokini
  • 233
  • 2004-11-15
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K.B. Dallaz Motors Ltd v. Borokini

K.B. DALLAZ MOTORS LTD.

MR. J. K. O. OBAFEMI

V

MR. SAMUEL AYODELE BOROKINI

MR. SAMUEL ADEWUNMI OGUNLOLA

( Trading under the name and style of S.A.O. Motors  Company)

AKURE NORTH LOCAL GOVT. COUNCIL

COURT OF APPEAL

( KADUNA DIVISION )

BABA ALKALI BA’ABA JCA ( Presided and Read the Lead Judgment )

JOSEPH JEREMIAH UMOREN JCA

ABUBAKAR ABDULKADIR JEGA JCA

CA/K/346/2001

THURSDAY, 13TH MAY, 2004

APPEAL - Fresh issue on appeal - Application for leave to raise - How made

APPEAL - Fresh issue on appeal - Raising of without leave of court Impropriety of

APPEAL - Ground of appeal - Application for leave to file and argue additional ground - Whether the same as application for leave to raise fresh issue

APPEAL - Ground of appeal - Ground formulated from fresh issue raised on appeal without obtaining leave - Incompetence of

FUNDAMENTAL RIGHT - Right to sue - Enactment stipulating conditions precedent to exercise of - Whether can be regarded as obstacle to access to court

JURISPRUDENCE - Right to sue - Enactment stipulating conditions precedent to exercise of - Whether can be regarded as obstacle to access to court

LEGISLATION - Enactment stipulating conditions precedent to exercise of right to sue - Whether can be regarded as obstacle to access to court

LEGISLATION - Existing law of a state - Applicability of to a new state created therefrom

PRACTICE AND PROCEDURE - Writ of summons - Service of outside jurisdiction without leave of court - Consequence of

PRACTICE AND PROCEDURE - Writ of summons for service outside jurisdiction of court - Issuance of without leave of court - Validity of - Distinction between service and issuance of writ of summons

Issues:

1.              Whether the order made by the High Court on 22nd of

September, 2000, satisfied the requirement of Order 5, rule 6 of the Kaduna State High Court (Civil Procedure) Rules, 1987 and whether the trial court was correct when it held that it was not sufficient merely to seek the leave of court to serve a writ of summons outside jurisdiction but that the plaintiff ought to have sought for leave to issue and serve the writ outside jurisdiction.

2.              Whether 3rd defendant did not waive his right to complain about any irregularity or defect (if any) in the proceedings.

2. Whether the Local Government Law, Cap 63 of 1976 Laws of Ondo State can be described as an existing law so as to bring about an invocation of the pre-action notice, a condition precedent to jurisdiction.

Facts:

The appellants herein instituted an action before the Kaduna State High Court, claiming jointly and severally against the respondents the sum of N2,550,000.00 being the market value of a Peugeot 504 Saloon Car as at 23 rd January, 2000, which was taken away from his possession in Kaduna, upon consideration i.e. promise that has totally failed. They also claimed interest and damages. Upon being served with the writ of summons, a notice of preliminary objection dated 4th December, 2000 was filed on behalf of the 2nd respondent raising objection to the hearing of the suit and urged the court to strike out the writ of summons served on the 2nd respondent for non-compliance with the rules of the trial High Court as leave to issue the writ of summons out of jurisdiction was not sought and obtained.

Also, a motion on notice dated 27th February, 2001 was filed on behalf of the 3rd defendant/applicant praying for an order striking out the entire suit as it concerns the 3rd defendant for incompetence and lack of jurisdiction as it failed to comply with the statutory provisions of section 174  of the Local Government Laws, Cap. 63, Laws of Ondo State of Nigeria which require one month notice on the 3rd defendant before the commencement of the action.

After hearing the applications, the trial court struck out the writ of summons as relates to the 2nd and 3rd defendant, the same being null and void. Dissatisfied, the plaintiff appealed to the Court of Appeal