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Mkpat Enin L.G. v. Pikk (Nig.) Ltd

MKPAT ENIN LOCAL GOVERNMENT

V

PIKK NIGERIA LIMITED

COURT OF APPEAL

(CALABAR DIVISION)

RAPHEAL OLUFEMI ROWLAND JCA ( Presided )

SIMEON OSUJI EKPE JCA (Read the Lead Judgment)

ISTIFANUS THOMAS JCA

CA/C/7/2001

WEDNESDAY, 2ND JULY, 2003

APPEAL - Issues for determination - Framing of in abstract terms Impropriety of

COMPANY LAW - Corporate body as party to a written contractual agreement - Need to correctly state incorporated name of company for contract to be binding on it

CONTRACT - Bindingness of - A contract is only binding on persons who have or are shown to have privity of contract

CONTRACT -  Contract entered to by non-juristic person - Effect of

CONTRACT - Corporate body as party to a written contractual agreement - Need to correctly state incorporated name of company for contract to be binding on it

CONTRACT - Non-juristic persons - Contracts entered into by - Invalidity and unenforceability of

COURT - Hypothetical issues - Impropriety of courts dealing with JUDGMENT AND ORDERS - Rules of court - Non-compliance with Effect of on judgment

JURISDICTION - Issue of - When can be raised - Propriety of raising of at stage of proceedings, even on appeal without leave of court

LOCUS STANDI - Lack of by plaintiff - Effect

LOCUS STANDI - Meaning and Importance of

LOCUS STANDI - Plaintiff’s locus standi - Determination of

LOCUS STANDI - When and by whom can be raised - Propriety of its being raised by parties or court suo motu

PRACTICE AND PROCEDURE - Hypothetical issues - Impropriety of courts dealing with

PRACTICE AND PROCEDURE - Irregularity - Party irregularly summoned before court - Options open to

PRACTICE AND PROCEDURE - Rules of court - Non-compliance with -  Effect of on judgment

PRACTICE AND PROCEDURE - Rules of court vis-a-vis statutory provisions - Breach of  - Difference between

PRACTICE AND PROCEDURE - Rules of practice or procedure Breach of -Effect - Appropriate time to raise objection on procedural irregularity

Issues:

1.              Whether the trial court was competent or had jurisdiction to give judgment in suit No. HAB/UND.2/2000, in favour of the plaintiff/respondent under the undefended list procedure, given the fact that the writ of summons in the matter was issued without leave of court and long before an order of the court granting leave to do so was made and that after the order was made, no writ of summons was issued and served on the appellants in compliance with the said order.

2.              Whether the plaintiff/respondent had the locus standi to institute the suit.”

Facts:

The plaintiff/respondent filed a writ of summons at the Ikot Abasi Judicial Division of the High Court of Akwa Ibom State, claiming against the defendant/appellant the sum of N1,102,634.05 (One million, one hundred and two thousand, six hundred and thirty-four naira, five kobo) being money due on a contract awarded to it by the defendant/appellant for the electrification of Ikot Abasi Akpan, Ikot Abia Enin, Ikot Ekpaw, Minya Ntak, Nya Odiong and Ikot Esen villages, all in the domain of the defendant/ appellant. The appellant refused to pay the due sum despite repeated demands.

The respondent purporting to bring the action under the undefended list procedure, filed the writ of summons on the 11th of November, 1999. Simultaneously, it filed a motion ex parte under Order 23 rule 1 of the High Court of Akwa Ibom State (Civil Procedure) Rules praying the court to enter the suit on the undefended list, and mark the writ as undefended.

Both parties were in court when the ex parte application came up for hearing. The appellant did not complain of any irregularity in the procedure adopted by the respondent, hence the court granted the orders sought. The appellant neither filed a notice of intention to defend nor an affidavit disclosing a defence. It was absent and unrepresented (having sought for an adjournment) on the date the suit came up for hearing. The trial court granted the reliefs sought by the respondent.

Dissatisfied, the appellant appealed to the Court of Appeal complaining of the irregular procedure adopted by the respondent, contending that the proceedings is thereby rendered null and void. It also contended that there was no privity of contract between it and the respondent as the electrification contract was awarded to one Bassey Essien in his personal capacity.