BEST LAW REPORT SUBSCRIPTION PRICE!!

  • R.I.T.T.C.T.C.S. v. Adindu
  • 612
  • 2012-02-20
  • ₦ 200
  • Buy Now

R.I.T.T.C.T.C.S. v. Adindu

THE REGISTERED INCORPORATED TRUSTEES TOTAL CO-OPERATIVE THRIFT & CREDIT

SOCIETY

MR. K. A. DISU

PRESIDENT, TOTAL CO-OPERATIVE THRIFT & CREDIT SOCIETY

V

MAZI OBI ADINDU

COURT OF APPEAL

(LAGOS DIVISION)

IBRAHIM MOHAMMED MUSA SAULAWA JCA (Presided)

JOHN INYANG OKORO JCA

ADAMU JAURO JCA (Read the Lead Judgment)

CA/L/649/10

FRIDAY, 3 JUNE 2011

ACTION - Action commenced in court - Suit number - Mandatoriness of bearing - Insertion of - Onus for - Who bears - High Court of Lagos State (Civil Procedure) Rules, 2004, Order 6, rule 3 considered

PRACTICE AND PROCEDURE - Action commenced in court - Suit number - Mandatoriness of bearing - Insertion of - Onus for Who bears - High Court of Lagos State (Civil Procedure) Rules, 2004, Order 6, rule 3 considered

PRACTICE AND PROCEDURE - Originating process - Defect in - Party who wishes to act aside on grounds of - Steps which must take High Court of Lagos State (Civil Procedure) Rules, 2004, Order 5, rule 2(1) considered

PRACTICE AND PROCEDURE - Writ of summons - Issuance of Burden of - On whom lies

STATUTE - High Court of Lagos State (Civil Procedure) Rules, 2004, Order 5, rule 2(1) - Originating process - Defect in - Party who wishes to set aside on grounds of - Steps which must be taken

STATUTE - High Court of Lagos State (Civil Procedure) Rules, 2004, Order 6, rule 3 - Action commenced in court - Suit number - Mandatoriness of bearing - Insertion of - Onus for - Who bears

Issue:


Whether the trial court was right to refuse the appellants’ application to set aside the service of the originating processes of this suit on them.

Facts:


The plaintiff in the High Court of Lagos State claimed declaratory and injunctive reliefs that he is the rightful owner of the plots of land out of the parcel of land owned by the defendants situate at Kajola, Ibeju Local Government Area of Lagos State, order of specific performance compelling and directing the defendants to yield up the plots, put the plaintiff in possession and execute all relevant and necessary documents evidencing the transaction and order of perpetual injunction restraining the defendants from interfering with claimant thereafter. In the alternative, order of court directing the defendants to refund the sum of N1,200,000.00 (one million, two hundred thousand naira) to the claimant being the sum paid to the defendants for the plots, and post-judgment interest on the sum and general damages. After service of the processes on the defendants the plaintiff applied for default judgment. The defendants thereafter filed an application praying the court to set aside the writ of summons and the accompanying process on grounds of absence of suit number. The trial court dismissed the application. Aggrieved, the defendants, appealed to the Court of Appeal.

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

High Court of Lagos State (Civil Procedure) Rules, 2004, Order 6, rules 1 - 4:

“1. Originating process shall be prepared by a claimant or his legal practitioner, and shall be clearly printed on Opaque A4 paper of good quality

2(1) The registrar shall seal every originating process whereupon it shall be deemed to be issued.

(2)          A claimant or his legal practitioner shall, on presenting any originating process for sealing, leave with the registrar as many copies of the process as there are defendants to be served and one copy for endorsement of service on each defendant.

(3)          Each copy shall be signed by the legal practitioner or by a claimant where he sues in person and shall be certified after verification by the registrar as being a true copy of the original process filed.”

3.             The registrar shall after sealing an originating process, file it and note on it the date of filing and the number of copies supplied by a claimant or his legal practitioner for service on the defendants. The registrar shall then make an entry of the filing in the cause book and identify the action with a suit number that may comprise abbreviation of the judicial division, a chronological number and the year of filing.

4.             The registrar shall promptly arrange for personal service on each defendant a copy of the originating process and accompanying documents duly certified as provided by rule 2(3) of his order.”

High Court of Lagos State (Civil Procedure) Rules, 2004, Order 5, rules 2(1):

“2(1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the

irregularity”