- K.B. Dallaz Motors Ltd v. Borokini
- ₦ 200
K.B. Dallaz Motors Ltd v. Borokini
K.B. DALLAZ MOTORS LTD.
MR. J. K. O. OBAFEMI
MR. SAMUEL AYODELE BOROKINI
MR. SAMUEL ADEWUNMI OGUNLOLA
( Trading under the name and style of S.A.O.
AKURE NORTH LOCAL GOVT. COUNCIL
COURT OF APPEAL
( KADUNA DIVISION )
BABA ALKALI BAâ€™ABA JCA ( Presided and Read the Lead Judgment )
JOSEPH JEREMIAH UMOREN JCA
ABUBAKAR ABDULKADIR JEGA JCA
THURSDAY, 13TH MAY, 2004
APPEAL - Fresh issue on appeal - Application for leave to raise - How
APPEAL - Fresh issue on appeal - Raising of without leave of court
APPEAL - Ground of appeal - Application for leave to file and argue
additional ground - Whether the same as application for leave to raise fresh
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
- 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
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
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.
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
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.
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