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  • Broad Bank (Nig.) Ltd. vs. Alhaji S. Olayiwola & Sons Ltd
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  • 2005-03-21
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Broad Bank (Nig.) Ltd. vs. Alhaji S. Olayiwola & Sons Ltd

BROAD BANK OF NIG. LTD.

V

ALHAJI S. OLAYIWOLA & SONS LTD.

ALHAJI S. OLAYIWOLA LAWAL

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE JSC ( Presided )

SYLVESTER UMARU ONU JSC

ALOYSIUS IYORGYER KATSINA-ALU JSC

UMARU ATU KALGO JSC

IGNATIUS C. PATS ACHOLONU JSC (Read the Lead Judgment)

SC. 288/2002

FRIDAY, 14TH JANUARY, 2005

COURT - Administration of justice - Power of court to do justice

COURT - Mandatory prescription of law - How construed by courts

COURT - Power to do justice - Exercise of - Need to be guided by the rules of court

COURT - Registrar of court - Duty on to perform his duty of endorsing process to ensure their validity

COURT - Technicality - Duty of court not to rely on technicality in voiding an act

INTERPRETATION OF STATUTES - Mandatory prescription of law How construed by courts

INTERPRETATION OF STATUTES - ‘Shall’ in the context of section 97 , Sheriffs and Civil Process Act - Meaning of

PRACTICE AND PROCEDURE - Lagos State High Court ( Civil Procedure) Rules 1994, Order 2, rule 4 viz-a-viz section 97,

Sheriffs and Civil Process Act - Purport of

PRACTICE AND PROCEDURE - Rules of court - Aids in the administration of justice

PRACTICE AND PROCEDURE - Rules of court - Purpose of

PRACTICE AND PROCEDURE - Service of writ out of jurisdiction, section 97 and 99, Sheriffs and Civil Process Act - Principle behind

PRACTICE AND PROCEDURE - Service of writ outside jurisdiction Leave for - Why court grants

PRACTICE AND PROCEDURE - Service of writ outside jurisdiction Necessity for obtaining leave of court

PRACTICE AND PROCEDURE - Service of writ outside jurisdiction Need to endorse as one “to be served ... out of the state” Omission of - Effect - Sheriffs and Civil Process Act, section 97 thereof

PRACTICE AND PROCEDURE - Service outside jurisdiction - Writ or originating summons meant to be so served not to be issued without leave

PRACTICE AND PROCEDURE - Sheriffs and Civil Process Act, section 99 - Requirement that ‘30 days’ be endorsed on the writ for service outside jurisdiction - Whether directory

PRACTICE AND PROCEDURE - Technicality - Duty of court not to rely on technicality in voiding an act

PRACTICE AND PROCEDURE - Writ of summons - Requirement that writ should be in a certain manner as condition for validity thereof - Duty of registrar to endorse same - Negligence of registrar - Whether plaintiff can be punished therefor

STATUTE - Lagos State High Court (Civil Procedure) Rules 1994, Order 2, rule 4 viz-a-viz section 97, Sheriffs and Civil Process Act Purport of

STATUTE - Sheriffs and Civil Process Act, section 97 - ‘Shall’ in the context of - Meaning of


STATUTE - Sheriffs and Civil Process Act, section 97 - Purport of

STATUTE - Sheriffs and Civil Process Act, section 99 - Requirement that ‘30 days’ be endorsed on the writ for service outside jurisdiction - Whether directory

WORDS AND PHRASES - ‘Leave’ to serve writ outside jurisdiction Meaning of in judicial context

WORDS AND PHRASES - ‘Shall’ in the context of section 97, Sheriffs and Civil Process Act - Meaning of

Issues:

1.              Whether the learned Justices of the Court of Appeal were right in holding that obtaining leave to issue after the filing of the writ of summons but before actual service of same on the defendants is bad in law.

2.              Whether the learned Justices of the Court of Appeal were right in setting aside the service of the writ of summons, statement of claim and other originating processes on the defendants in Osun State of Nigeria on grounds of the nonendorsement of the writ and the stated time for appearance on the processes served.

3.              Whether the learned Justices of the Court of Appeal were right in holding that the old rules (1972 Rules) as against the new rules (1994 Rules) applies to the proceedings taken before the lower court on the 19th day of November, 1997.

Facts:

In the High Court of Lagos State, the appellant instituted an action against respondents who live in Osun State and filed an ex parte application seeking leave of court to issue and serve the writ out of jurisdiction. The prayer was granted and respondents were served. Thereafter, respondents filed a notice of preliminary objection to set aside the issuance and service of the writ and statement of claim, arguing as to the applicable rule to the action, whether the 1972 or 1994 High Court of Lagos State (Civil Procedure) Rules. The trial court ruled in favour of the respondents and held that the applicable rule was that of 1972.

Aggrieved, the appellant appealed to the Court of Appeal on the question of the applicable rules of court and also on the writ not having been endorsed. The respondents cross-appealed on the aspect of the decision dealing with subsequent leave to issue and serve and the number of days limited for appearance. The Court of Appeal dismissed the appeal and allowed the cross-appeal. The appellant has further appealed to the Supreme Court.

The provisions of Order 2, rule 4 of the 1994 Lagos State High Court (Civil Procedure) Rules and sections 97 and 99 of the Sheriffs and Civil Process Act were extensively considered.

Order 2, rule 4 provides thus:

“subject to the provisions of Part vii of the Sheriffs and Civil Process Act, no writ of summons for service out of jurisdiction or of which notice is to be given out of jurisdiction shall issue without leave of the court or a Judge in chambers”

Sections 97and 99 of the Sheriffs and Civil Process Act provides thus:-

“97 Every writ of summons for service under this part out of the state or the Capital Territory in which it was issued shall in addition to any other endorsement or notice required by the law of such state or the Capital Territory have endorsed there a notice to the following effect:-

‘This summons (or as the case may be) is to be served out of the ... State (or as the case may be) ... and in the ... State (or as the case may be)’.”

99. “The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than 30 days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period”.