BEST LAW REPORT SUBSCRIPTION PRICE!!

  • R.M.A.F.C. v. Onwuekweikpe
  • 528
  • 2010-07-12
  • ₦ 200
  • Buy Now

R.M.A.F.C. v. Onwuekweikpe

REVENUE MOBILIZATION, ALLOCATION AND FISCAL COMMISSION

V

CHIDI ONWUEKWEIKPE ESQ.

( Carrying on Business and Law Practice under the Name and Style of C. Chidi Onwuekweikpe)

COURT OF APPEAL

( ABUJA DIVISION )

JIMI O. BADA JCA ( Presided and Read the Lead Judgment )


ABDU ABOKI JCA

AYOBODE OLUJIMI LOKULO-SODIPE JCA

CA/A/73/07

TUESDAY, 3 JUNE 2008

COURT - Court registry - Mistake of - Court visiting on litigant - Impropriety of

COURT - Rules of court - Purport of - Legal statutes of

EVIDENCE - Business letters - Reply to - Mandatoriness of

JUDGE - Slip by - Proper approach to

JUSTICE - Rendering of as empirical element of adjudication

PRACTICE AND PROCEDURE - Proceedings - Commencement of under High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004, Order 2, rule 1 - Non-compliance with -  Effect of proof of - Burden of - Who bears

PRACTICE AND PROCEDURE - Procedural irregularity - Objection to - Proper time to raise - Failure to - Legal consequence of

PRACTICE AND PROCEDURE - Statutory provision - Non-compliance with - When fatal

PRACTICE AND PROCEDURE - Undefended list procedure Proceedings under - When commences - High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004, Order 4, rule 1  considered

PRACTICE AND PROCEDURE - Undefended list procedure - Suit commenced thereunder - Notice of intention to defend and affidavit to - Defendant’s failure to file - Legal consequences of -  Order 21, rules 3(1)(2)(4) of High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004, considered

PRACTICE AND PROCEDURE -  Writ of summons - Endorsement of Where registrar fails to do so and no objection is raised Irrelevance of

PRACTICE AND PROCEDURE - Writ of summons - Who may issue under - Order 4, rule 1(1) of High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004

STATUTE - High Court of Federal Capital Territory, Abuja ( Civil Procedure) Rules,2004, Order 2, rule 1 - Proceedings Commencement of thereunder - Non-compliance with - Effect of -  Burden of - Proof of - Who bears

STATUTE - High Court of Federal Capital Territory, Abuja ( Civil Procedure) Rules, 2004, Order 4, rule 1(1) - Writ of summons Who may issue

Issues:

1.             Whether the issuance of a writ of summons is not what heralds the commencement of a civil suit of this nature and therefore confers jurisdiction on the court.

2.             Whether the learned trial Judge was right when he placed the suit on the undefended list and ordered the writ of summons to be marked accordingly while there was nothing in the affidavit in support of motion exparte to show that parties have agreed on a specific amount.

Facts:

The plaintiff in the High Court of  Federal Capital Territory, Abuja, instituted an action under the undefended list, claiming N1,000,000.00 (one million naira) being outstanding professional/terminal bill for the legal services rendered to the defendant, 10% court interest rate on the judgment and cost of action. The defendant failed to file notice of intention to defend with affidavit in support. The trial court entered judgement in plaintiff’s favour. Aggrieved, the defendant appealed to the Court of Appeal.

In determination of the appeal, the Court of Appeal considered the following statute:

1.             High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004, Order 4, rules 1(1), (2) and 15:

“(1) A writ of summons shall be issued by a registrar, or other officer of court empowered to issue the summons on an application.

(2) An application shall be made in writing by the plaintiff’s solicitor who completes form 1, as in the appendix.

15. A writ is issued when signed on by a registrar or other officer of court duly authorized to sign the writ and accompanied by: (a) A statement of claim (b) ...

(c)           ...

(d)          ...

2.             High Court of Federal Capital Territory High Court, Abuja ( Civil Procedure) Rules, 2004, Order 21 rule  1(1):

“Where an application in form 1, as in the appendix is made to issue  a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to it, the Judge in chambers shall enter the suit for hearing in what shall be called the “undefended list.”